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Child Protection – Evidence and Production (CYFSA version)

Admissibility – General Test

R. v. Morris [1983] 2 S.C.R. 190

Evidence is only admissible if:

a) It is relevant, in that, it must have a tendency to prove or disprove the existence of any material fact necessary for the determination of the issues to be decided; and

b) It is not subject to exclusionary rule of law or public policy.

Admissibility of non-material facts - Not all facts need to be proved to the same standard.  Uncontested facts or non-material facts might be established through hearsay evidence. However, given the unique character of child protection proceedings, the quality of the evidence proffered to prove a material fact (whether contested or not) must be carefully scrutinized, and a court should generally demand evidence that is solid, credible and, in most cases, from first-hand knowledge.  Children’s Aid Society of Toronto v. O.G. and T.A.L, 2015 ONCJ 125 (CanLII) at para. 52.

Admissibility – Prior court orders and findings of fact – Prior court orders, reasons for decision and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial notice of other court orders, even in other files. Attorney General of B.C. v. Malik, 2011 1 S.C.R. 657; Children’s Aid Society of Toronto v. I.H., 2017 ONCJ 760. Statements of Agreed Facts are admissions – an exception to the hearsay rule.

Although not binding on the court, recent findings of fact made by a Quebec court were given great weight in child protection case. Court found that while estoppel did not apply (different parties) it would be an abuse of process not to recognize the findings. Also admitted under past parenting section 93 (1) (b). See: Catholic Children’s Aid Society of Toronto v. T.T.L., 2018 ONCJ 403

Admissibility – Reliable evidence

The Inquiry into Pediatric Forensic Pathology in Ontario (Toronto: Queen's Printer for Ontario, 2008) (the "Goudge Report"), released on 1 October 2008, states that judges have a vital role to play in protecting the legal system from the dangers of unreliable evidence. Although his report dealt with the dangers of unreliable expert evidence, the commentary in Commissioner Stephen T. Goudge's report applies to the dangers of admitting unreliable evidence of any nature. Children’s Aid Society of Toronto v. L.L., 2010 ONCJ 48.

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Adoption – Evidence of Adoptability- Evidence of adoptability has been said to not be essential: Children’s Aid Society of Niagara Region v. P. (D.), [2003] O.J. No. 619 (Ont. S.C.J.); and Children’s Aid Society of Niagara Region v. C. (J.), [2007] O.J. No. 1058 (Ont. Div. Ct.).  Nevertheless, in my view, some evidence is required and would assist the court in meeting its obligation under section 56 (e), the child’s long-term stable placement. Children’s Aid Society of Hamilton v. E.O., 2009 CanLII 72087 (ON S.C.). Durham Children's Aid Society v. R.S., [2010] O.J. No. 1134: The recent case of Children's Aid Society of Hamilton v. E.O., 2009 CanLII 72087, suggests that a Society must tender some evidence, although it recognizes that such evidence is not always necessary. The court in Catholic Children's Aid Society of Toronto v. J.D. [2007] O.J. No. 3575, at paragraph 75, looked at the issue of adoptability. "In certain circumstances, it is obvious that a child is adoptable and little evidence is required in support. At this end of the "adoptability spectrum" are infants or toddlers who are healthy and who suffer no impairments. At the other end of the spectrum are older children with serious mental and physical disabilities. These children are the least adoptable and accordingly, the onus on the Society to prove adoptability is much greater."

Adoption – Expert –Although they can be qualified, caution needs to be exercised before qualifying an expert employed by one of the litigants. There is a real concern about their independence. The expert should be qualified to give evidence as to whether an enduring adoption placement can be obtained, not just whether the child can be placed. A voir dire should be held to determine this. CAS Ottawa v. C.W., 2008Canlii 13181 (Sup.Ct.) Adoption worker not qualified as expert in Children’s Aid Society of Niagara Region v. D.M. [2002] O.J. No. 1421 (SCJ).

Affidavits – Attaching case notes and records

The habit of simply attaching to affidavits various reports or notes is a practice that should not be encouraged by the court especially if the reports are relevant to the primary issues before the court.  This may be as a result of the confusion between the disclosure obtained by counsel and then the evidentiary value and basis for the admissibility of that disclosure.  Just because records are disclosed does not automatically make that disclosure admissible. Counsel should determine the basis of the admissibility of the evidence such as, if the disclosure qualifies as a business record or if it is being tendered as an expert report and then follow the procedure with respect to proper notice and be prepared to explain to the court the relevance and necessity for the evidence being admitted. Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212.

Affidavits – Attaching counselor reports

It is improper to attach them to affidavits if it deals with issues and expresses opinions that are material to the issues before the court.  They are not admissible under any provisions of the Evidence Act. They are not in a sworn affidavit. It should include information about the qualifications of the counselor. Children's Aid Society of Toronto v. C.J.W., 2017 ONCJ 212.

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Affidavits - From lawyer’s court staff

From: CAS v. N.A.-M., 2018 ONSC 978

Affidavits sworn by a person who records the evidence through information and belief, at best, can only be given limited weight, as such affidavits lack important safeguards, particularly the ability to provide meaningful responses in cross-examination.

The subset of lawyer's affidavits, or that of their staff which are based on information and belief are particularly problematic unless they serve only to summarize matters of record, or uncontested facts.

To go beyond procedural statements is to risk the Affidavit being perceived as nothing more than the lawyer’s views; and to invite the possibility of the solicitor being removed for a conflict of interest should her or her firm’s employee be the material witness at trial.

Affidavits – Need to be balanced

Children’s Aid Society of Toronto v. B.H. and M.P., [2007] O.J. No. 2446 (Ont. C.J.):  [55]         This court has to make a major decision for these children and their

families that will have a huge and permanent impact on their lives.  The society is a powerful institution and with such power comes great responsibility.  The goal of a state litigant is justice.  It is not about winning.  The society’s role in presenting a case to the court is not merely to present evidence that justifies its position, but to present all relevant and probative evidence, including that not favourable to its position, to ensure that the best possible decision for children can be made.  It is important that society workers understand this.  Society counsel can only put forward the evidence that the workers provide to them.  It is important to educate the workers about their responsibility to provide a balanced perspective of the case to the court and not only provide information that justifies their position.  It is not good enough to say that it is the job of the parents’ lawyers to produce this evidence.  Parents’ counsel (if the parties even have counsel) rarely have the resources of the society and should not have to chase after this information.   Child protection trials are not, and should not, be a game.

 

  [56]         From a practical perspective, this made the evidence of the society workers less reliable.  How could I fully trust that they were providing me with the full context when they were giving me their evidence, when they chose to present their negative observations in such a disproportionate manner?  This did not mean that I rejected their evidence, but it did mean that I treated it with more caution.

These comments are applicable to every stage of a proceeding and I would think are even more pertinent when we are hearing a summary judgment motion. Children’s Aid Society of Toronto v. M. (A.) 2007 ONCJ 743 Canlii.

Agreed Statement of Facts - Should be clear record of what everyone has agreed to. Blatant hearsay and other evidence that would be inadmissible at trial should be excluded. All parties should leave court with a detailed plan of care which shows start date and location of services that they are expected to attend. It reflects that many parents don’t know how to get help, have no phone or need help organizing service

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providers. The cost of the programs, the cost of babysitting and transportation should be explored. If working, be cautious about overloading. CAS Huron County v. R.G. 2003 O.J. No. 3104 (OCJ).

Where a previous order was made on the basis of an agreed statement of facts, the society may tender additional evidence. This accords with the reality that prior consents may have limited facts due to the parties’ desire to move the case forward without contention. Durham CAS v. B.R. [2005] W.D.F.L. 4448 (Ont. SCJ).

Anonymous Reports – There is no evidentiary value in anonymous reports. They do not meet the principled exception of necessity and reliability as they can’t be cross-examined or tested. Inadmissible hearsay is not a question of weight – it has no evidentiary weight. Director P.E.I. v. J.P. – April 25, 2013, P.E.I.S.C.

Assessments

Jewish Family and Child Service of Toronto and R.K., 2008 ONCJ 774 (CanLII), par. 78:

Courts should always treat assessments with caution. The assessor does not have the benefit of the full evidentiary record that a trial judge has. Their reports, by their very nature, are predictive. They are just one piece of evidence and what is important for the court is to evaluate how the findings do or do not correspond with the evidence at trial.

Assessments – Critiques –

From: Halton Children’s Aid Society v. A.W., [2016] O.J. No. 3219

The use of critique evidence by vulnerable parents in child protection proceedings commenced by the state against them is fundamentally different than the critique evidence used in a high conflict parenting dispute about overnight visitation, which was the case of M. v. F., supra. Other courts have admitted expert critique evidence in child protection proceedings. See C.A.S of Simcoe v. D. (B.), 2014 ONSC 2140 (Div. Court), affirming 2013 ONSC 1610; C.A.S. of Toronto. v. K.O. (2004), 50 R.F.L. (5th) 298; C.A.S. of the Regional Municipality of Waterloo v. L.,2004 ONCJ 116 (Ont. C.J.).

In this case, the critique evidence of Dr. Kalia relates to a section 54 assessment under the CFSA for use in a child protection proceeding where the state is a party (and the applicant) to the proceeding and the order being sought is crown wardship--the permanent severance of the parent-child relationship. Further, the critique was solely concerned with the validity and reliability of the scientific testing conducted, as well as the methodology and process used by Dr. Blake in determining parenting capacity. The voir dire conducted demonstrated that Dr. Kalia's expertise clearly met the Mohan test for admissibility.

Browne v. Dunn - Rule – It requires a cross-examiner who intends to impeach the credibility of a witness through extrinsic evidence to give that witness notice of their intention. Need flexibility, with an emphasis on fairness.

Browne v. Dunn options set out in R. v. Dexter (December 11), 2013 ONCA 744 (Ont. C.A.). — Non-compliance with the rule — Rule stands for the proposition that if counsel

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is going to challenge the credibility of a witness by calling contradictory evidence the witness must be given the chance to address the contradictory evidence — The cross-examiner gives notice by first putting questions to the witness in cross examination that are sufficient to alert the witness that the cross examiner intends to impeach the witness’ evidence and giving the witness an opportunity to explain why the contradictory evidence or inferences to be drawn from it should not be accepted — The rule does not require the cross-examiner to slog through a witnesses evidence in chief putting him on notice of every detail the defence does not accept — Only the nature of the proposed contradictory evidence and its significant aspects need be put to the witness — In deciding how to address a breach of the rule a trial judge may consider: seriousness of the breach; context in which the breach occurred; stage in the proceedings when an objection to the breach was raised; response by counsel if any to the objection; any request by counsel to re-open its case so that the witness whose evidence has been impugned can offer an explanation; and availability of the witness to be recalled — Extent of rule’s application is within the discretion of the trial judge after taking into account the circumstances of the case — Two permissible options to rectify a breach are: taking into account the failure to cross examination when assessing the witness’s credibility and deciding the weight to be given to the witness’s evidence, another is allowing counsel to recall the witness whose evidence has been impeached — The aggrieved party ought to be provided with the opportunity to recall the witness if the concern lies in the witness’ inability to present his or her side of the story and the witness is available and recall is appropriate.

The rule in Browne v. Dunn is designed to provide fairness to witnesses and parties. The extent of its application resides within the discretion of the trial judge and depends on the circumstances of the case. The rule does not prohibit findings of fact adverse to a witnesses’ credibility absent compliance. R. v. Sadikov, 2014 ONCA 72 Canlii.

Court has option to bring back unexamined witness for further cross or the failure to cross-examine on the point can go to weight. R. v. McNeill (2000) 33 C.R. (5th) 390. 

R. v. Quansah, 2015 ONCA 237 (CanLII) at paras. 75 -86, reviewed and restated the principles relating to the rule in Browne and Dunn as follows: 

a)        If a party intends to impeach a witness called by an opposite party, the party who seeks to impeach must give the witness an opportunity, while in the witness box, to explain any contradictory evidence;

b)        The rule is rooted in the following considerations of fairness:

(1)    fairness to the witness whose credibility is attacked so that the witness is given an opportunity to explain;

(2)   fairness to the party whose witness is impeached so that the party has notice of what aspects of the witness’ testimony is being contested and the party can decide whether or what confirmatory evidence to call;

(3)   fairness to the trial judge so that she can discharge her function in assessing credibility; and

(4)    to ensure that the trial is run efficiently and to avoid having to re-call witnesses;

c)        The failure to cross-examine supports an inference that the opposing party accepts the witness’ evidence in its entirety or at least on the specific point;

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d)        Compliance with the rule does not require a party to cross-examine on “every scrap of evidence” but on matters of substance; and

e)        The failure to cross-examine on matters of substance impacts the opposing party’s credibility.

Child Statements (also see hearsay)

The essential defining features of hearsay are the fact that it is an out of court statement adduced to prove the truth of its contents and the absence of a contemporaneous ability to cross- examine the statement.

Hearsay is presumptively inadmissible unless it falls within a traditional exception or if indicia of reliability and necessity are established on a voir dire (the principled exception).

Child hearsay can be admitted as an exception to the hearsay rule, using the principled approach of establishing necessity and reliability as set out in R. v. Khan, [1990] 2 S.C.R. 531.

NecessityThe first question to be determined is whether the reception of the hearsay statement is reasonably necessary. At paragraph 31 in Khan, the Supreme Court of Canada said that,

"The inadmissibility of the child's evidence might be one basis for a finding of necessity. But sound evidence based on psychological assessments that testimony in court might be traumatic for the child or harm the child might also serve. There may be other examples of circumstances which would establish requirement of necessity."

In the Law of Evidence in Canada, third edition, Bryant, Lederman, Fuerst, the authors' state at paragraph 6.96:

"Necessity relates to relevance and availability of evidence. There are various degrees of necessity, ranging from the fact that the declarant is deceased, or ill, or incompetent to testify, or otherwise unavailable, to the fact that, although he or she is available to testify, little would be gained by the declarant's attendance in court."

The test for necessity is not whether the hearsay statement is the best form of the evidence (for that will always be live testimony), but whether it is the "best available form" in the circumstances. R. v. Couture, 2007 SCC 28.

In R. v. Khelawon, [2006] 2 S.C.R. 787, Charron J. notes that the requirements of necessity and reliability are related. She states at para 49:

"The broader spectrum of interests encompassed in trial fairness is reflected in the twin principles of necessity and reliability. The criteria of necessity is founded on society's interest in getting at the truth. Because it is not always possible to meet the optimal test of contemporaneous cross-examination, rather than simply losing the value of the evidence, it becomes necessary in the interests of justice to consider whether it should nonetheless be admitted in its hearsay form. The criterion of reliability is about ensuring the integrity of the trial process. The evidence, although

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needed, is not admissible unless it is sufficiently reliable to overcome the dangers arising from the difficulty of testing it.

Courts have found reasonable necessity established without requiring expert testimony on the issue of risk of trauma, fragile emotional state or other adverse consequences resulting from testifying at trial. In R. v. Ngoddy, 2015 ONCJ 783, evidence was accepted by the trial judge from support workers, the complainant's mother, as well as a physician. In CAS Ottawa v. L.L., 2001 CarswellOnt 4169 (SCJ), the court relied upon evidence from a police officer and a foster mother in reaching the conclusion that threshold necessity had been established.

Necessity found with 13 and 8 year old children in Children’s Aid Society of Ottawa v. M.S., 2018 ONSC 4276. The older child had suffered trauma in the past, the children had loyalty conflicts, they experienced stress when speaking about their views and preferences and didn’t want to upset their mother and a child psychiatrist testified about the stressful experience of testifying.

CAS of Ottawa v. L.L., 2001 CarswellOnt 4169, at para 6 states:

"As stated above, necessity has been interpreted to mean "reasonably necessary". In addition, it "must be given a flexible definition, capable of encompassing diverse situations." See R. v. Smith, [1992] 2 S.C.R. 915 (S.C.C.). The requirement of necessity may be established if the child will suffer emotional trauma from testifying.

Cited with approval in Children’s Aid Society of Ottawa v. C.L., 2018 ONSC 1241 where the court writes:

24 My conclusion from all of the evidence on the voir dire is that the threshold test for necessity to admit the child's out of court statements has been met. I am satisfied that S. is an emotionally fragile child. She has engaged in self-harm by cutting on at least three prior occasions. Two occasions were associated with the court process: following the police interview on March 6 but before March 22 when she told Ms. Amyotte she was happy with the court ruling on access and had stopped cutting; and in relation to the summary judgment motion heard on December 12, 2017. I find the proximity in time and the related subject matter of both events, namely her contact with her father and all that it entailed, to establish the connection between the self-harm and her engagement in the court related process.

Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191 (CanLII): Society must lead evidence of necessity. Discomfort is not enough. Court writes at par.48:

It is therefore incumbent on the court to have the best evidence available, particularly if the court is considering the removal of the children from their parents’ care. While the transcripts of the children’s evidence will assist the court and will considerably shorten the children’s testimony, the transcripts are not the best evidence to determine credibility and to assess the demeanour of the children. The transcripts do not offer the same value as hearing and seeing the children directly when giving their evidence. I am extremely concerned about accepting this hearsay evidence on such a crucial issue at this stage in the child protection trial without the benefit of directly observing the children. This is in the children’s best interests as well as being consistent with principles of fundamental justice.

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Also see Children’s Aid Society of Algoma v. L.H., [2002] O.J. No. 5118, where the court did not find necessity stage satisfied, writing at paragraph 30:

Fear, or disinclination, or reluctance, even discomfort do not constitute necessity.

Transcripts of criminal proceedings not admitted. Cross-examination of children (17, 11 and 8) permitted with conditions that it would done by closed-circuit television, with a support person present and only mother’s counsel could cross-examine on her behalf and on behalf of self-represented father. CAS Region of Halton v. J.O., supra.

In Children’s Aid Society of Oxford County v. E.M.T., 2018 ONCJ 918, the court found that the necessity requirement wasn’t met and required a 12 year old child to testify. The court wrote: “While children must, first and foremost, be protected, to allow the introduction of hearsay evidence from children, it must be necessary. This means that there is sufficient evidence to establish on a balance of probabilities that it cannot or should not be introduced through the maker of the statement. Children’s Aid Society of London Middlesex v. A.R.M., 2017 ONSC 3037 (CanLII)”. The court found that necessity was met for the 9 and 7 year old children in the case.

In Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, the court found necessity had been met for children, 10, 8 and 7 writing:

[89]        With respect to the issue of necessity, in this case the children are 10, 8 and 7 years old and their mother and their counsel object to them being called as witnesses. In explaining her view that the children should not be required to testify, the family service worker testified that the children are young; they are already caught in the middle of the conflict; they have all made statements that they are anxious, fearful and worried about the father and paternal grandmother knowing that they wish to live with the mother; they are fearful of the father hurting them; and, they have all confirmed that the paternal grandmother told them to lie. I adopt these concerns as valid reasons as to why the children should not be required to testify.

[90]         I also find that most significant in this case is the fact that the father is self-represented and if the children are required to testify, their father will be directly asking his children questions.  As the father maintains that the issue is about the children’s credibility, he would be cross-examining the children about their truthfulness with respect to their statements that he assaulted C. by stomping on her head, that the paternal grandmother slapped A. and about their statements that their fear him and the paternal grandmother. I find that this would be traumatic for the children.

[91]        I am satisfied that in the circumstances of this case, that the children will suffer emotional harm if required to testify and be cross-examined by their father. I find that I do not need expert evidence to come to this common sense conclusion. I find that it is not reasonably necessary for the children to testify and the truthfulness and accuracy of the children’s statements can be met by cross-examination by the father of the various social workers to whom the children made the statements other than by him cross-examining the children.

Some courts have relaxed the test of necessity at the disposition stage. From: Halton Children’s Aid Society v. T.L., 2015 ONCJ 255.

[31]    I considered that a protection finding had already been made in this matter. Once a protection finding has been made, the test of necessity is more relaxed and what is only reasonably

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necessary in the circumstances is considered. See Justice David Aston’s decision in Children's Aid Society of London and Middlesex v. B.B. and J., [2000] O.J. No. 235, (2000), 4 R.F.L. (5th) 183, (Ont. Fam. Ct.), at paragraph 16:

"The court's role on the adjudication of child protection proceedings has a dual character. In determining whether or not a child is in need of protection, the court's role is to determine disputed facts between litigants, and there is no rationale for its relaxing the rules of evidence. However once a determination has been made that a child is in need of protection, the rights of the parents are subjugated to the best interests of the child, and the court assumes a role much more closely aligned with the historical parens patriae jurisdiction exercised in England and described in Winnipeg Child and Family Services v. L.(L.), [1994] M.J. No. 251."

Child Statements (also see hearsay) - Reliability

From: Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124. The

9     Child hearsay can be admitted as an exception to the hearsay rule, using the principled approach of establishing necessity and reliability as set out in R. v. Khan, [1990] 2 S.C.R. 531.

11     The court in Khan set out many considerations to assess reliability, such as timing, demeanour, the personality of the child, the intelligence and understanding of the child, and the absence of any reason to expect fabrication in the statement. There is not a strict list of considerations for reliability. The matters relevant to reliability will vary with the child and with the circumstances.

12     In determining the issue of reliability, the legal test for the court to apply at a voir dire involving child statements is whether the circumstances surrounding the statements achieve threshold reliability -- not whether the statements are ultimately reliable. The question for threshold reliability is whether the particular statement is sufficiently reliable to be admitted. See: R. v. Khelawon, [2006] S.C.J. No. 57.

13     The court must employ a functional approach by first identifying the particular dangers posed by the proffered hearsay and then considering whether those dangers may be adequately overcome so that the hearsay may be considered sufficiently reliable to be admitted for consideration by the trier of fact. At paragraphs 61-63 of Khelawon, Charron J. observes that the reliability requirement will generally be met in one of two ways:

(1) that there is no real concern about whether the statement is true or not because of the circumstance in which it came about; or

(2) that no real concern arises from the fact that the statement is presented in a hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination.

14     On the threshold test of reliability, it is not necessary that the judge be satisfied on each and every potential indicator of reliability. Weaknesses in some areas may be compensated for by strength in others. See: Children's Aid Society of Ottawa-Carleton v. L.L., [2001] O.J. No. 4587 (SCJ); Halton Children's Aid Society v. T.D.L.D.S.L., 2015 ONCJ 255.

15     The recent Supreme Court of Canada decision in the case of R. v. Bradshaw, 2017 SCC 35 (CanLII), provided a synthesis and reorganization of the law pertaining to the admissibility of hearsay statements. The Bradshaw case was about the use of corroborative evidence to support the threshold reliability of a hearsay statement.4 It appears to be a reorganization of the restatement of the hearsay test set out in R. v. Khelawon, as described in paragraphs 12 and 13 above.

16     The following statements made in Bradshaw are pertinent to the hearsay analysis:

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a) The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach. -- Bradshaw at pars. 22-23.

b) In determining threshold reliability, the trier of fact must identify the specific hearsay dangers inherent in the out-of-court declaration. The trier of fact must then identify the means by which these dangers can be overcome. These dangers arise notably due to the absence of contemporaneous cross-examination of the hearsay declarant before the trier of fact (Khelawon, at paras. 35 and 48). The dangers relate to the difficulties of assessing the declarant's perception, memory, narration, or sincerity, and should be defined with precision to permit a realistic evaluation of whether they have been overcome. -- Bradshaw at para. 26.

c) The hearsay dangers can be overcome and threshold reliability can be established by showing that (1) there are adequate substitutes for testing truth and accuracy (procedural reliability) or (2) there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability) (Khelawon, at paras. 61-63; Youvarajah5, at para. 30) -- Bradshaw at para. 27.

d) Procedural reliability is established when "there are adequate substitutes for testing the evidence", given that the declarant has not "state[d] the evidence in court, under oath, and under the scrutiny of contemporaneous cross-examination" (Khelawon, at para. 63). These substitutes must provide a satisfactory basis for the trier of fact to rationally evaluate the truth and accuracy of the hearsay statement (Khelawon, at para. 76; Hawkins, at para. 75;6 Youvarajah, at para. 36).

e) A hearsay statement is also admissible if substantive reliability is established, that is, if the statement is inherently trustworthy (Youvarajah, at para. 30; R. v. Smith, 1992 CanLII 79 (SCC), [1992] 2 S.C.R. 915, at p. 929). To determine whether the statement is inherently trustworthy, the trial judge can consider the circumstances in which it was made and evidence (if any) that corroborates or conflicts with the statement (Khelawon, at paras. 4, 62 and 94-100; R. v. Blackman, 2008 SCC 37 (CanLII), [2008] 2 S.C.R. 298, at para. 55). -- Bradshaw at para. 30.

f) The two approaches to establishing threshold reliability may work in tandem. Procedural reliability and substantive reliability are not mutually exclusive (Khelawon, at para. 65) and "factors relevant to one can complement the other". -- Bradshaw at para. 32.

g) The distinction between threshold and ultimate reliability, while "a source of confusion", is crucial (Khelawon, at para. 50). Threshold reliability concerns admissibility, whereas ultimate reliability concerns reliance (Khelawon, at para. 3). -- Bradshaw at para. 39.

h) In short, in the hearsay context, the difference between threshold and ultimate reliability is qualitative, and not a matter of degree, because the trial judge's inquiry serves a distinct purpose. In assessing substantive reliability, the trial judge does not usurp the trier of fact's role. Only the trier of fact assesses whether the hearsay statement should ultimately be relied on and its probative value. -- Bradshaw at para. 41.

Justice Roselyn Zisman provides an excellent example of a Bradshaw analysis in Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8 writing:

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[93]        With respect to procedural reliability, I find that the society workers, Ashdeep Singh and Jaimie Goldstein, recorded the statements with the children accurately. Ms Singh is an experienced worker and received training in interviewing children. Although Ms Goldstein is not as experienced, she also received training in interviewing children.  A copy of Ms Goldstein’s case notes are attached to the chart of the children’s statements that the society is seeking to admit.  The questions asked are all recorded as well as the responses. There are no leading questions or prompting and the children spoke spontaneously about their relationship with their father and the paternal grandmother.  Both workers had a duty to record their interviews with the children and did so within 24 hours of the interviews.  Both workers testified that their recordings are accurate. Their evidence was not diminished in cross-examination. The allegations that the family service workers were biased against the father are baseless.

[94]        Ms Albert, the clinical investigator from the OCL also recorded her interviews with the children as part of her duties and her evidence as to the accuracy of her recordings was also not diminished in cross-examination.  The father’s allegation that she was influenced by the society workers was denied by Ms Albert who confirmed that she conducted an independent investigation. There was absolutely no evidence to substantiate the father’s allegation against her.

[95]           Constable Knill is an experienced police officer with the child and youth unit and has specific training in conducting child forensic interviews.  She testified that she had conducted thousands of interviews with children. The accuracy of her evidence with respect to the interviews with A. and S. was not challenged by the father and the video recording of those interviews corroborated her evidence.  

[96]        With respect to substantive reliability, the statements of each of the children are very similar and made to multiple workers over a lengthy period of time. For example, the details of the incident with respect to the father stomping on C.’s head are detailed and specific.  Both Ms Singh and Ms Goldstein were confident that the children knew the difference between telling the truth and a lie. The interviews with the children were conducted in private and separately. Both workers testified that there was no evidence that the children had been coached or unduly influenced by the mother. Other than the father’s statement that he felt the children were coached by the mother, he offered no evidence in support of this allegation. I find that children of this age could not be coached to say the same thing over multiple interviews to different workers over a lengthy period of time. 

[97]        The hearsay is first-hand hearsay. The father has the opportunity to cross-examine the various social workers and Constable Knill to whom the children made statements and he also has a copy of their notes. In most ways their evidence is more reliable than any oral evidence the children could provide with respect to incidents that have now occurred over a year ago. Further, there is a strong likelihood that children would be afraid of repeating those statements if required to testify in court in view of the fact that the children have expressed fear of the father knowing that they made these statements.

[98]        Therefore, the statements tendered by the society for their truth are admitted as having met the threshold requirements of both procedural and substantive reliability.

Threshold reliability is not established just because a child gives a statement to a child protection worker. In Catholic Children’s Aid Society of Toronto v. C.G., 2018 ONCJ 193, the court set out a list of questions that should be asked as follows:

a) The experience of the workers.

b) The training of the workers in interviewing children.

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c) The workers’ practice in note-taking and whether that practice was followed in the child interviews.

d) Were the statements recorded contemporaneously?

e) Did the workers record their questions that they asked the child?

f) Did the workers ask leading questions?

g) Were the child’s statements spontaneous or prompted?

h) Did the child provide detailed and coherent statements?

i) Did the child have any motivation to fabricate the statements?

j) Did the timing of any of the statements arouse suspicion about their validity?

k) Were the child’s statements consistent over a period of time?

l) Is there evidence corroborating the child’s statements?

m) What is the level of maturity of the child?

n) What is the intelligence and level of understanding of the child?

o) Where was the child interviewed? Was there any reason to believe that the location of the interview influenced the child’s statements?

p) Were the visits private? Were any other adults nearby during the interview?

q) What is the nature of the workers’ relationship with the child? Is the child open and candid with them?

Child statements made to workers didn’t meet threshold reliability. Considerable double hearsay submitted. Best evidence, such as videotapes not produced. Based on the record provided, the court had no way of assessing the circumstances surrounding the child’s statements including her appearance, her demeanor, her disclosures and whether they were spontaneous or prompted by the nature and manner of the questions put to her. CAS (Ottawa) v. M.M., 2018 ONSC 786.

The professional role of the note-taker is more persuasive where the affiant is aided by his or her own notes than is the case where the affiant deposes to his or her understanding of another worker's notes about statements made by the child. This is especially so when the corresponding case notes have not been provided. Also, a professional obligation to

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report is not, in and of itself, an index of reliability. CAS (Ottawa) v. M.M., 2018 ONSC 786.

From: Wilson v. Wickham, 2018 ONSC 2574

[30] The reliability test is met when a) the evidence is not objected to, b) the child has said the same thing to more than one lay witness, or c) has made statements to someone who has demonstrated skill in interviewing children (see: Hartland v. Rahaman (2001), 2001 CanLII 28160 (ON SC), 22 R.F.L. (5th) 310 (Ont. S.C.), S.R. v. M.R., [2002] O.J. No. 1519 (S.C.); Stefureak v. Chambers (2004), 2004 CanLII 34521 (ON SC), 6 R.F.L. (6th) 212 (Ont. S.C.); and Zaidi v. Qizilbash 2014 ONSC 201 (CanLII), 2014, ONSC 201).

[31] These cases also indicate that the weight given to the statements of children depends on such things as the mental and physical age of the child, the circumstances of the taking of the statement, the risk that the child was influenced or manipulated, the risk that the statement was edited or manipulated, and the desire of the child to please the parent taking or requesting the statement. Where influence is likely, the statements should be given little weight (see cases cited in the paragraph above and Norland v. Norland, [2006] O.J. 5126 (S.C.); Kennedy v. Sinclair (2001), 2001 CanLII 28208 (ON SC), 18 RFL (5th) 91 (Ont. S.C.); and A.G.L. v. K.B.D. (2009), 2009 CanLII 943 (ON SC), 93 O.R. (3d) 409 (S.C.).

[34] The best expression of a child’s views and preferences is that elicited through and by trained professionals (see: Woodhouse v. Woodhouse (1996), 1996 CanLII 902 (ON CA), 29 O.R. (3d) 417 (C.A.): Forte v. Forte, 2004 CanLII 7631 (ON SC), [2004] O.J. No. 1738 (S.C.)

From: D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903:

36     Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child's care:

Despite anything in the Evidence Act, in any proceeding under this Part [child protection],

(a) the court may consider the past conduct of a person toward any child if that person is caring for or has access to or may care for or have access to a child who is the subject of the proceeding; and

b) any oral or written statement or report that the court considers relevant to the proceeding, including a transcript, exhibit or finding or the reasons for a decision in an earlier civil or criminal proceeding, is admissible into evidence.

37     Evidence about a child's expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.

38     Statements about the child's views and preferences set out in affidavits by Children's Aid Society workers' affidavits are admissible: Strobridge v. Strobridge (1992), 10 O.R. (3d) 540 (ONSC).

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39     Statements that show the child's state of mind are also admissible as a general exception to the hearsay rule where they are admitted not for their truth but for the fact that they were said: Paciocco and Stuesser, The Law of Evidence, 5th Ed. at p.176. Here, many of the complained-of hearsay statements were considered by the motion judge in this context.

40     In addition, while in some cases, admission of hearsay might be unfair, here the mother does not point to any particular unfairness resulting from the admission of the evidence presented on the motion. It does not appear that she made any objection to that evidence at the hearing or asked to cross examine the deponents of the affidavits.

To consider corroborative evidence the court must determine whether, given the circumstances of the case, whether the cumulative effect of it rules out alternative explanations for the statement such that the only remaining likely explanation for it is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. R. v. Bradshaw, 2017 SCC 35 (S.C.C.).

Corroboration is only relevant to substantive reliability. The trial judge is not obliged to look at the piece of corroboration in isolation. The import of individual pieces of corroborating evidence may be enhanced by a consideration of the entirety of the evidence, including other pieces of corroboration evidence. See: R. v. Thyagarajah, 2017 O.J. No. 5550.

Child statements made to society workers met threshold reliability in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124. The court wrote as follows:

29     In terms of procedural reliability, the court finds that the society workers' accounts of their conversations with the child were recorded accurately. Both workers are experienced and have received training in interviewing children. The workers had a duty to accurately record their interviews with the child. They both recorded their notes within 24 hours of the interviews with the child and were confident that their recordings were substantially accurate. They made these notes pursuant to their professional responsibilities. The FSW testified that he would write down simultaneously any quotes attributed to the child and then transcribe them into the society's computer system within 24 hours. Neither worker had any motive to record the notes inaccurately.

30     The workers are very familiar with the child and were able to assess her demeanour. They both described the child as open and comfortable with them.9 They both testified that she spontaneously made statements about her relationship with the father, without prompting, and willingly provided them with information about her life. She would answer their questions without hesitation and provided detailed and coherent answers.

31     Both workers testified that they did not lead the child to make her statements and both were confident that her statements were made voluntarily. The FSW sets out that he recorded the questions he asked the child and gave examples to the court. The CSW described her discussions with the child as conversational.

32     The reliability of the statements made to the CSW were of a higher quality than those made to the FSW, as most of the statements made to the FSW by the child were during telephone conversations. This made it more difficult for him to assess her demeanour. This will go to the weight to be given to the statements made to him when assessing their ultimate reliability.

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33     The society has also established sufficient substantive reliability for the child's statements to be admitted -- the statements having achieved threshold reliability.

34     The child's statements to the society workers are very similar. They are generally consistent and have been made over a long period of time. Many of the statements are specific and detailed, lending credence to them.

35     The statements of the child are consistent with the position she is taking in this trial.

36     The child was described as open and forthcoming by both workers. They noticed no change in tone by the child when making her statements that would cause them to believe they were not accurate.

37     The child is of an age where she has an understanding of the statements she is making and the importance of those statements.

38     The child's statements also have some balance to them. She makes statements about positive visits with the father and positive comments about her relationships with her sisters.

39     The statements made to the CSW were made in private settings.

40     The workers both testified that there was no evidence that the child was being coached or influenced to make her statements and neither believed that this was happening. The CSW emphasized that the child was adamant that these were her views -- no one else's.

41     The father did not lead any evidence on the voir dire to indicate that the child had been coached or influenced by any person (in particular, the maternal aunt) to make any of these statements. It may be that such evidence is led at trial and if so, the court will weigh the ultimate reliability of these statements when making its final decision.

42     The substantive reliability indicia are not perfect. The following concerns were identified:

a) The child made an allegation of physical abuse by the father to the police that she later recanted.

b) The child denied making a call to her sister in July, 2017. The CSW believes the child did make this call.

c) Many of the child's statements to the FSW were over the telephone. He could not assess if anyone else was present or influencing the child.

43     These adverse factors, however, are not sufficient to reject the child's statements at the threshold reliability stage -- not all of the indicia of reliability have to be established to perfection at this stage of the analysis. These factors will go to the weight to be given to the child's statements when the court determines their ultimate reliability.

The court would not admit the child’s statements in G.S. about physical abuse by the father as they were historic, not recorded contemporaneously by the society worker and recanted by the child.

Videotaped child statements were found to have sufficient procedural reliability, even though there was no cross-examination in The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.

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Videotape of an older child, found necessary (but less so) and only allowed in for disposition, not finding. Allowed in for the younger 10 year old child. Risk of trauma. Reliable since it took place in a non-intimidating setting, statements were open and spontaneous, no indication of coaching, children appeared to understand the obligation to be truthful. Huron-Perth CAS v. J.(J) 2006 CarswellOnt.8580 (OCJ).

Children - State of Mind

Court permits child’s counsel to express children’s views and preferences as state of mind hearsay exception. Children’s Aid Society of Algoma (Elliott Lake) v. P.C.-F., 2017 ONCJ 898.

The basic requirements for the state of mind exception are:

a) a statement asserting a condition or state

b) the statement must comprise a contemporaneous physical, mental or emotional state of the declarant

c) the statement may not describe the cause of the state, whether it be past or present events

d) the mental state can include a person’s present intention to do a future act

e) the statement must not be made under circumstances of suspicion.

See: Catholic Children’s Aid Society of Toronto v. N.N., 2019 ONCJ 8, where the father said the statements were made under circumstances of suspicion. The court wrote at paragraph 76:

[76] The statements were made to different society workers from two different agencies and to a social worker from the OCL over a period of time. The statements were all transcribed by these workers who had no motive to lie and the children had no motive to lie. Most of the statements were made spontaneously. The statements are all first-hand hearsay and the workers to whom the statements were made were all available for cross-examination. The workers all kept notes that were either made simultaneously or shortly after their interviews with the children. The notes were in the possession of the father and he could therefore cross-examine the workers regarding the accuracy of their notes and their note taking process.

From: Children's Aid Society of St. Thomas and Elgin v. A.H., [2017] O.J. No. 6581 (OCJ):

[39] Declarations of the declarant's contemporaneous state of mind, emotion, or intention are considered in some circumstances to constitute a common law exception to the hearsay rule. In these circumstances, the declarant has little opportunity to reflect upon and concoct a false account of their state of mind. Therefore there exists a circumstantial guarantee of the trustworthiness of the statement. The passage of time also erodes the likelihood the declarant witness providing equally accurate and unclouded recounting of the same state of mind during the course of the trial. In that sense, the contemporaneous state of mind declaration is considered necessary to obtaining the most truthful account of the declarant's state of mind. In other cases, courts have ruled that the contemporaneous declarations of the declarant's state of mind can be received as original

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evidence, as circumstantial evidence of the declarant's state of mind, and thus not hearsay at all. However categorized, this type of declaration has long been recognized as not attracting the hearsay exclusionary rule.

In Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124 the court the court found that the state of mind hearsay exception includes a child’s wishes and preferences and statements made by the child about his or her physical, mental and emotional state. The statements must assert a contemporaneous physical, mental or emotional state. They cannot include the reason for the child’s statement and should not be made under circumstances of suspicion. The court admitted child statements to show child’s views and preferences about where she wanted to live and how much access she wanted with her father; her feelings about living with her aunt; feelings about her access with the father; feelings about pressure father was placing on her; statements about her stress level, her pride in her school performance and how she was sleeping and eating for state of mind in Children’s Aid Society of Toronto v. G.S., 2018 ONCJ 124.

In Children’s Aid Society of Ottawa v. M.S., 2018 ONSC 4276 the court applied the Bradshaw threshold reliability test (procedural and substantive reliability) to statements being offered for the child’s state of mind.

N.P. v. D.B., 2019 ONCJ 291, where the court admitted statements for state of mind regarding views and preferences about where the children wished to live and what school they wish to attend, statements made regarding fear of the father and his wife, statements regarding conflict between the parents and any statements regarding their fears, anxiety and worries would fit into this category. Views and wishes of children as expressed to a clinical investigator during an investigation by the OCL are admissible under the state of mind exception to the hearsay rule. The issue for the court to determine is the weight to be placed on those views and preferences.

Children - Summons

The judge has the power to vacate or set aside a subpoena to a child witness or to refuse a subpoena in the first place. Dudman v. Dudman [1990] O.J. No. 3246 OCJ.

S.(M.E.) v. S. (D.A.) 2001 A.J. No. 1521 QB. – a court has inherent power to exclude children from the courtroom and rejected child affidavits as an abuse of process by the parent.

Father not allowed to call a 16 year old child in a child protection case in CAS of Ottawa v. S.M., 2011 ONSC 2434 (CanLII) and set out the following considerations for the court to consider in exercising its jurisdiction:

(a)               The age and maturity of the child,(b)               The child’s view with respect to testifying,(c)          The trauma that such an experience might or would cause the child

especially if it involves testifying for or against a parent,(d)               The purpose for which the child is being called as a witness,

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(e)               The reliability and probative value of the child’s evidence,(f)                 The importance and relevance of the child’s evidence, and(g)               The availability of evidence from other sources to address the issue in

question.

The Ontario Court of Appeal in Miglin v. Miglin, 34 R.F.L. (5th) 255 (S.C.C.), made it clear that calling children as witnesses in a family law dispute is a discretionary decision of the trial judge. See also section 79 (5) of the CYFSA (formerly 39 (5) of the CFSA).

Collateral Fact Rule – A collateral fact is one which is neither material nor relevant to the issues being litigated and which a party would not have to prove as part of their case. Answers given by a witness to questions put to them on cross regarding collateral facts are treated as final and cannot be contradicted through extrinsic evidence. Sopinka on Evidence, page 963 2ed. This is to avoid confusion and distraction, avoid delay, unfair surprise.

A fact is not collateral when:

1. It is relevant to the facts in issue.2. To show prior convictions – S.22 Ont. Evidence Act.3. Prior inconsistent statements – s. 20 for written, s.21 for oral. If you intend to use

the statement to contradict you must put it to the witness. If still not admitted proof can be led that they made the statement.

4. To show bias, interest, corruption or fabrication. Mcdonald v. R. (1959) 126 CCC SCC.

5. Not re: pure credibility.6. Probative value outweighs consumption of time, confusion of issues, unfair

surprise, undue prejudice to a party.

Although extrinsic evidence can’t be led, the witness can be crossed on collateral facts.

Credible and trustworthy evidence – Historical information from society

Information taken from a society’s records that are kept in the ordinary course of business are prima facie reliable. It would be impractical to have each worker involved in the events that pre-dated the society’s current involvement to swear affidavits with respect to a temporary care and custody motion. Further, it would focus undue attention on the past events as opposed to the current issues that resulted in the society commencing the Protection Application. See: JFCS v. A.W., 2017 ONCJ 962.

Criminal Conviction – It is prima facie proof of underlying facts, but can be rebutted, with evidence not available at the criminal trial. H.W. and H.D. v. A.H.C. 2006 Canlii 27865 (Ont. C.A.); Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191 (CanLII).

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A criminal conviction is admissible evidence in a civil proceeding under the terms of section 22.1 of the Ontario Evidence Act. The criminal conviction is proof of the essential elements of the offence, “in the absence of any evidence to the contrary”. See: Thompson on Past Parenting.

In CCAS of Toronto v. C.N.G., [2016] ONCJ 6, a criminal conviction was admitted as prima facie proof of the underlying facts, including the mother’s guilty plea (a formal admission) and the transcript of the sentencing. But references in the sentencing to reports of the mother’s mental health were not relied on, as the full reports were not tendered, there was insufficient evidence to assess reliability and the prejudicial effect outweighed the probative value.

From: M.A.L. v. R.H.M., 2018 ONSC 159797. The fact that a person pleads guilty to a criminal offence is prima facie proof that he or she

committed the offence.  Zhao v. Yang 2015 ONCJ 408 (CanLII), 2015 ONCJ 408 (OCJ).  It is always open for them to adduce specific evidence at their family court trial to try to explain why the criminal conviction doesn’t tell the whole of the story.  But in that event they should present specific evidence about all of the relevant considerations which went into the decision to plead guilty despite innocence.  This could include:

a. Particulars of any prejudice they would face while awaiting a criminal trial.b. The strength or weakness of the Crown’s case.c. The nature and strength of any defence evidence.d. The likelihood of conviction (bearing in mind that the standard of proof is higher in

criminal matters).e. The availability of legal counsel.f. Whether there was any inter-relationship or concurrence between the charge to which a

guilty plea was entered, and the disposition of other charges.g. Any other relevant or pressing personal considerations. 

Demeanour – Impressions of a mother’s reactions are highly prejudicial and shouldn’t be relied upon. CAS Nipissing and Parry Sound v. Stephanie S. 2006 ONCJ 32.

Documentary Disclosure –

There is an enhanced level of disclosure in child protection cases. The society had to bring a motion to obtain the notes and records of their expert. CCAS of Toronto v. S. (A.) 2007 CarswellOnt 8280 (Murray).

Parents obtaining disclosure – Subrule 19(11) does not apply to materials that flow to society through mechanism of section 130 of the CYFSA (formerly section 74 of the CFSA). Basis principles of disclosure set out in R. v. Stinchcombe (SCC 1991) apply to child protection law.

 Subject to any claims of privilege or privacy, the society’s obligation to provide disclosure to parents extends to all third-party or non-party records in its possession.  As the applicant in the child protection proceedings, any document in its possession from a third party flows to the respondents. CAS of Halton Region v. T.C.B., 2012 ONCJ 69 (CanLII).

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It has long been recognized that the principles in The Queen v. Stinchcombe [1991] 3 S.C.R. 326 are applicable to child protection proceedings.  In the criminal justice system, the disclosure net is cast wide, in part because of the severe consequences of many prosecutions.  Child protection proceedings likewise often involve severe consequences for parents and their families. The indefinite removal of children for up to one year or the permanent removal of children are severe consequences.  Thus, it is important there be a wide net and low bar for disclosure, in child protection proceedings.  There is a parallel between the Crown’s role in a criminal prosecution and a society’s role involving the welfare of children.  See Children’s Aid Society of Sudbury and Manitoulin v. Ginette M., Benoit M. and Ernie S., [1992] O.J. No. 181 (OCJ), per Provincial Judge André L. Guay; and Children’s Aid Society of Peel Region v. Valerie J., 1993 CanLII 5411 (ON C.J.), per Provincial Judge Theo Wolder.

The law is clear that the obligation to disclose includes not only evidence and information which the Society intends to use in its case against the parents, but also evidence and information which it does not intend to use as part of its case against the parents, but which might be “of some use” to the parents in their own case. On appeal, society required to provide surveillance information in their file to parents finding that an entitlement to obtain information about “any issue in the case” is equally as broad as an entitlement to ask questions about “any matter in issue in the action”.  The court was satisfied, that the caselaw developed under Rule 31.06 (1) of the Rules of Civil Procedure applies to a request for information under Rule 20(3) of the Family Law Rules.  It follows that, although the documents produced from the surveillance are privileged and need not be disclosed, the Society is obligated to disclose the informational component of that evidence. Chatham-Kent Children’s Services v. R.T. and H.D.C., 2014 ONSC 789 (CanLII).

Mother was not permitted production of counseling records of child under subrule 19 (11) motion, using Wigmore test. Child and Family Services for York Region v. H. (L.), 2013 CarswellOnt 12901 (Ont. S.C.J.).

Disclosure to the society through Section 130 of the CYFSA (formerly section 74 of the CFSA)

Relevance should be interpreted liberally to mean a “semblance of relevance”. The pleading may not predict what issues will be joined after the pre-trial stage and the party will be unaware of the precise contents of the records. It trumped mother’s privacy right. OK for immaterial information to be in it as it would not be admissible at trial. It must yield to the paramount consideration. It is OK that some of the information will be immaterial. What is relevant cannot be delegated to a third party. Any involvement by the judge in the production process, should be the exception and not the rule. While there should be no distinction between the proof of facts in child protection vs. other cases, if accuracy in fact finding were said to assume greater importance in child protection maters, this would militate in favour of a broad definition of relevance at the production

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stage to ensure that all potentially relevant information will be available to the trier of fact. Nova Scotia v. B.L.C., 2007 NSCA 45.

The court’s authority under subsection 130 (3) of the CYFSA is discretionary. The court may order the production of evidence that may be relevant, but it is not required to do so. The case law supports the proposition that, before making a subsection 130 (3) order, the court should consider whether there are competing public policy interests or privacy interests that militate against the disclosure of the material being sought. See paragraph 43: Children’s Aid Society of Thunder Bay (District) v. D. (S.), 2011 ONCJ 100.

The phrase “may be relevant” is not an onerous test. See: Children’s Aid Society of Algoma v. P. (D.) [2007] O.J. No. 3601 (SCJ). The society requires full disclosure to properly meet its mandate to investigate protection concerns. Some courts have defined the test as meaning a “semblance of relevance”. A document may be relevant for production and investigation purposes, but may not be admissible at trial. See: Nova Scotia (Minister of Community Services) v. B.L.C., 2007 NSCA 45 (CanLII).

The test for disclosure in section 130 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Stavro, (1995), 26 O.R. (3d) 39 (OCA). See: Native Child and Family Services of Toronto v. P. (Sherry) et al., 2009 ONCJ 473.

The low threshold for production in section 130 of the Act recognizes that the society will often require third party records for investigative purposes so that they can adequately assess the risk to a child and be in a position to present relevant evidence to the court. See: Children’s Aid Society of Algoma v. P. D. [2006] ONCJ 170.

In determining relevance, the court must determine whether the evidence is not only logically relevant, but pragmatically relevant.  The probative value of the evidence must outweigh any prejudice to its introduction.  See: The Queen v. A.K. and N.K. 45 O.R. (3d) 641, (Ont. C.A.).

The therapeutic records of older children receiving treatment have at times been given more protection than those of a party to a case, since the legislation is designed for their best interests and their need to receive treatment in confidence should be given considerable weight. This is was what the court decided in Children’s Aid Society of Ottawa v. N.S. [2005] O.J. No. 1070 (SCJ - Family Ct.).

In CCAS v. J.S., 2013 ONCJ 200 (CanLII), the court found that the society didn’t meet the low threshold for a 16 year old child when they wanted hospital records for treatment purposes and not investigative purposes. The child did not lose her privacy rights by being in the care of the society.

Merely because a parent had been involved in child protection proceedings did not mean that any police records relating to parent might be relevant to proceedings — Something more was required — There had to be evidentiary basis that police records might be

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relevant to proceedings and they were to be produced. See: Children’s Aid Society of Ottawa v. H.D., 2019 ONSC 1946.

In JFCS v. H.B.S., 2012 ONCJ 663 (CanLII), the court required the father under section 130 of the Act to obtain his treatment records from the United States, as the court could not make an order binding the U.S. institution.

Subrule 19(11) does not apply to materials that flow to a society through the section 130 mechanism established under the D.P. decisions.

The D.P. decisions focused on economy by dealing with the issues of disclosure to a society and also disclosure ultimately to parents and respondents, all under one umbrella, whether the respondents have formally requested disclosure or not.  Usually respondents want what the society already has.  The D.P. decisions enshrine the principle that respondents will receive the same disclosure as the society has received from the criminal justice system, minus contact information.  There is then set up a mechanism by which the contact information may be obtained.  Further, the use of the disclosure received by respondents is subject to terms, conditions and restrictions.  Subrule 19(11) would set up a different standard for providing disclosure to respondents and conflicts with the standard already established in the D.P. decisions.  In conclusion on this issue, any materials received from the criminal justice system by a society are not further vetted through a subrule 19(11) mechanism when those materials flow to the respondents in the protection proceeding. Children’s Aid Society of Algoma v. B.(S.), 2008 ONCJ 358.

Disclosure - Police Records - Criminal justice does not have a paramount value in the protection of society.  The child protection value is equal.  Both must be functioning effectively in order to protect society. There is no evidence on this motion to support abuse of criminal justice system materials disclosed by children’s aid societies in child protection proceedings. Children's Aid Society of Algoma v. P.(D.), 2006 ONCJ 170

The test for disclosure in s. 130 of possible relevance is far less stringent than the civil test of disclosure from third parties set out in Ontario (Attorney General) v. Stavro (1995), 26 O.R. (3d) 39.. Further, the child protection case is not precluded from proceeding just because a criminal case is outstanding. Native Child and Family Services of Toronto v. P. (Sherry) et al., 2009 ONCJ 473.

Disclosure – Section 130 procedure for police records (Algoma CAS v. P.D.)  (a) The notice of motion and accompanying affidavit shall be served on the

institution that holds the records in question.  (b) That institution, in the case the Attorney General, shall forthwith provide to

the society the undeleted disclosure materials.  By agreement, deletions to those materials may be made on matters that are clearly irrelevant.  These would include social insurance numbers, internal police codes and computer data, dates of birth and licence plate numbers.  Further, there would be excluded on a public interest basis any information pertaining to confidential informants, police investigation strategies and tactics and communications

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with counsel.    There may be certain pieces of information that for the most part would be

irrelevant.  However, in given circumstances, such information might be relevant so as to provide contact information for the society to further its investigation.  These would include any place of employment or even a licence plate number, because with that information, a search can be conducted to ascertain the contact address for the potential witness.

  (c) On receiving these materials, the society is not to disseminate the materials to the respondents, their counsel or to any other individual.  The purpose of the society’s possession of these materials is to review them so the society can form an opinion on what may be relevant.

  (d) The society would then advise the Attorney General what portion of the materials may be relevant.  The Attorney General would identify clearly relevant material, wherein dissemination was not objected to and which would be identified for distribution.  Contentious material would be identified for future judicial determination as to disclosure.

  (e) In cases involving a significant volume of materials, it would be more practical to conduct an inventory of those materials whether they contain documents touching on specific areas or issues.  If counsel are unable to agree on the relevance and discoverability of a document on the basis of the inventory alone, a copy of the document shall be provided for review by counsel, such copy not to be further copied.

  (f) A list of documents agreed by counsel that may be relevant and discoverable shall be provided to the court and a consent disclosure order shall issue covering such documents.

  (g) The Attorney General shall prepare a list of documents that are in dispute.  That list is to be filed with the court together with copies of the documents.

  (h) Counsel for the Attorney General and the society shall prepare brief written submissions referring to each contested document or category of documents and providing reasons why the particular document may or may not be relevant and should or should not be disclosed.

  (i) In the submissions, and assuming disclosure is ordered, draft orders are to be prepared dealing with the issue of further dissemination to the respondent parties in the child protection proceeding.

  (j) If the court decides that particular documents do not meet the section 130 relevancy standard, then the society must return the documents to the Attorney General and not keep a copy thereof in the society file.

  (k) If documents are deemed to meet the relevancy test, then an order shall issue stating such and providing for disclosure to the respondents in the child protection proceeding.

  (l) The court does not weigh privacy interests in a section 130 hearing other than the privacy interests already provided for in the section.  The one area in which D.P. v. Wagg would apply, would be where there is another public interest value in the criminal justice system to be considered along with the

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public interest in child protection, such as occurred in the case of Catholic Children’s Aid Society of Toronto v. Tammy K., Michael R. et al., wherein the police investigative process was ongoing and disclosure of police materials in the child protection proceeding could compromise the important public value in the completion of the police investigative process.  In such a scenario, there would be two public values competing against each other.  If that were to happen, then the section 130 relevancy issue is to be determined first.  If that threshold is passed, then the court must consider the public interest value advanced by the Attorney General against the public interest in child protection.

    The argument is to be framed in relevancy.  That does not mean indirectly articulating privacy rights under the relevancy standard, which is an impression I had during submissions.  It further does not mean articulating privacy rights as a public interest factor.

  (m) Assuming the relevancy threshold is met, then the court considers the draft orders as to provisions of further dissemination of the materials to the respondents in the child protection proceeding.  It would be preferable that such further disclosure to the respondents would be minus any contact information.  If respondents seek to contact any particular witness then such request should be forwarded to the society, who in turn would advise either the police or the local Crown attorney’s office or the Attorney General, as the case may be, so they may have input on how communication should be conducted to those witnesses.

Disclosure – Privacy Rights -The Office of the Children’s Lawyer has an overlapping function with children’s aid societies.  Its public duty to investigate, protect and represent would be compromised by enhancing privacy rights.  Its counsel in child protection proceedings receive disclosure through societies.  That disclosure may be less than it should be, for possibly relevant information will be blocked.  Those counsel may not have important information for properly representing their children clients.  Would defence counsel in criminal cases accept these kinds of privacy rights blocking disclosure?  They would not.  The effective legal representative function of children should not be less than the effective legal representation of accused persons.  In the zeal to prevent a small number of cases of disclosure abuse, there will be a larger pool of children who may be compromised by the enhancement of privacy rights. The public interest in child protection is too important to allow privacy rights to erode the investigative tool in section 130 of the CYFSA. Children’s Aid Society of Algoma v. P.D. above.

Disclosure – Internet provider

The Manitoba Court of Appeal held that, in appropriate circumstances, a child protection agency could apply for an order requiring the ISP to produce the subscriber name, address and contact telephone numbers associated with a subscriber who used a particular internet protocol address on a particular date. ANCR v. Shaw Communications Inc., 2017 MBCA 92, 2017 CarswellMan 447

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Disclosure – Society’s records about third party caregiver

If they are relevant, the society should produce them. Children’s Aid Society of Brant v. N.M.P., 2016 ONCJ 266.

Disclosure – Therapeutic records of child

Catholic Children’s Aid Society of Toronto v. SSB [2013] ONSC 4560 – OCL not required to disclose to the society notes and records of meeting between child and clinical assist when lawyer present stating “A child-client’s right to a confidential relationship with counsel must be guarded with more vigilance than that accorded to an adult client, not with less”. 

Catholic Children’s Aid Society of Toronto v. J.S. 2013 ONCJ 200 – the court refused to release a 16-year-old’s counseling records when the society wanted it for treatment purposes, as opposed to assessing risk. The child did not give up her privacy rights coming into society care.

Child and Family Services for York Region and L.H., [2013] O.J. No. 4188 (Ont.S.C.J.). The court released an older child’s school and reintegration therapy records to the mother, but not counseling records. Court found request for the child’s counseling records to be entirely speculative and a fishing expedition to see what might be helpful. This had to be balanced against strong public interest in protecting and fostering child therapy, particularly in acutely dysfunctional circumstances.

In Children’s Aid Society of Toronto v. F. D.-S., 2016 ONCJ the court applied the 4-part Wigmore test and found that the child’s privacy interests outweighed any benefit of the mother obtaining the child’s therapeutic records. An important consideration was that the child was already a child in extended care of the society (formerly crown ward) and the parent-child relationship had been severed. The court wrote:

[20]      Once a child is made a crown ward there is a significant change to the nature of the society’s records.  Prior to a child being made a crown ward, the society maintains both family and child service files which document the society’s involvement with the family.  Parents have the right to the information in the society’s files regarding themselves and their children and this right extends to any third party records that the society may have in their own files or have the ability to obtain.

[21]      However, once a child is made a crown ward, the society no longer provides services to the family and the society closes its file with respect to the family of origin.  The society only continues to provide services to the child in foster care and maintains a children’s service file. The information in the child’s file revolves around the child’s life, giving rise to a significant privacy interest for the child.  Given that the child-parent relationship has been terminated (unless there exists an access order or an openness order nor agreement neither of which is applicable in this case), the parents’ entitlement to disclosure should end. The high standards on the society to ensure a parent has all of the relevant information to defend against the society severing their relationship with their children is no longer applicable.

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Disclosure – Youth Records

From: Children's Aid Society of Toronto v. A.C., (December 20), 2016 ONCJ 750 (Ont. C.J.):

Records created in the course of police investigations and prosecutions of young people are strictly controlled under the Youth Criminal Justice Act in order to protect the privacy of the young persons involved. An application for access to such records requires the court to balance “some valid public interest with the benefits of maintaining the privacy of young persons who have come in conflict with the law”: S.L. v. N.B., [2005] O.J. No. 1411 (Ont. C.A.), par. 42.

Sections 119 to 123 of the YCJA set out rules governing access to YCJA records, including police records. Section 119(1) sets out specific categories of persons who may apply for access to records, and sub-section 119 (2) provides for time periods (“access periods”), during which those persons may be entitled to, or authorized, to have access to records. The access periods are generally a function of the outcome of the prosecution, the nature of the crown election, and the gravity of the offence.

Once an access period has expired, sub-section 128(1) provides thatSubject to sections 123…no record kept under sections 114 to 116 may be used for any purpose that would identify the young person to whom the record relates as a young person dealt with under this Act…

Section 128 provides that after the access periods have expired, youth records will be inaccessible, subject to certain exceptions. Section 123, is one such exception. Section 123 provides for access by any person whose application is made after the relevant access period has expired.

Whether an application for access is governed by section 119, or by section 123, will depend on whether the records fall within or outside the access periods.  The test to be applied by the court under each section is different. A more stringent test must be satisfied under section 123. As a result, determining which section applies is the essential first step in an application.

The fact that access periods are defined under section 119, and that records are more difficult to access under section 123, is consistent with the presumption of diminished moral blameworthiness for young persons, upon which the criminal justice system for young persons is based. It is also consistent with the emphasis on rehabilitation and reintegration which is a central principle of the Act. The relative inaccessibility of YCJA records protects young people from the long term negative consequences of their youthful offending behaviour, and is in keeping with the rehabilitative intentions of the Act. 

Application for the police records within the access periods will be governed by section 119(1)(s). Under section 119 the society must show it has a valid interest in the records and that access to the record is desirable in the interest of the proper administration of

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justice.

Section 123 provides a more stringent test than section 119(1)(s):A youth justice court judge may, on application by a person after the end of the applicable period set out in subsection 119(2), order that the person be given access to all or part of a record kept under sections 114 to 116 or that a copy of the record or part be given to that person,

(a) if the youth justice court judge is satisfied that

(i) the person has a valid and substantial interest in the record or part,

(ii) it is necessary for access to be given to the record or part in the interest of the proper administration of justice, and

(iii) disclosure of the record or part or the information in it is not prohibited under any other Act of Parliament or the legislature of a province…

Under section 123, the applicant’s interest must be “valid and substantial”, rather than merely valid, and the court must be satisfied that access is “necessary”, rather than simply “desirable,” in the interest of the proper administration of justice. As Katarynych, J. stated in J.D. (Re), [2009] O.J. No. 6384,

 I cannot use the principles of s. 119 to inform application of the criteria required by s. 123 of the Act to this adjudication. The fact that a victim might have had an access to information under s. 119 of the Act, had the victim reached for that access within the statutory access period, does not mean that the access is available after the expiry of the access period.

The test prescribed by the Act is a stringent test. Access to a record that is "desirable" in the interest of the proper administration of justice is not synonym for access that is "necessary". Section 123 rests nothing in "desirability". Access to a record because the interest in it is shown to be valid is not enough under s. 123 of the Act. An interest in a record that is "valid" may or may not rise to the level of an interest that is both "valid" and "substantial. Moreover, the task in an application under s. 123 is to show that it is "necessary" for access to be given to the record or part of it in the interest of the proper administration of justice. See YCJA s. 123 (1) (a).(emphasis in the original).

Expert Evidence

Experts - Case law

The Supreme Court of Canada has set out the steps for courts to take in admitting expert evidence in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23. The process has two main components.

The first component requires the court to consider the four traditional threshold requirements for the admissibility of the evidence established in R. v. Mohan, supra. These requirements are:

1. Relevance (which has been defined as logical relevance);

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2. Necessity in assisting the trier of fact;

3. Absence of an exclusionary rule and;

4. The need for the expert to be properly qualified.

The party attempting to introduce the expert must establish each of the Mohan factors on a balance of probabilities. See: R. v. Terceira (1990) 3 S.C.R. 866.

The second component is a discretionary gatekeeping step where the judge decides whether the potential benefits of admitting the evidence justifies the risks of doing so. It is a cost-benefit analysis under which the court must determine whether the expert evidence should be admitted because its probative value outweighs its prejudicial effect.

The court in White Burgess explained that the lack of independence or impartiality on the part of an expert witness goes to the admissibility of the witnesses’ testimony, not just to its weight (par. 40).

White Burgess also sets out the following principles with respect to the admission of expert evidence:

a) Expert witnesses have a duty to the court to give fair, objective and non-partisan opinion evidence. They must be aware of this duty and able and willing to carry it out. The expert’s opinion must be impartial in the sense that it reflects an objective assessment of the questions at hand. It must be independent in the sense that it is the product of the expert’s independent judgment, uninfluenced by who has retained him or her or the outcome of the litigation. It must be unbiased in the sense that it does not unfairly favour one party’s position over another. The acid test is whether the expert’s opinion would not change regardless of which party retained him or her. These concepts, of course, must be applied to the realities of adversary litigation.

b) Concerns related to the expert’s duty to the court and his or her willingness and capacity to comply with it are best addressed initially in the “qualified expert” element of the Mohan framework. A proposed expert witness who is unable or unwilling to fulfill his or her duty to the court is not properly qualified to perform the role of an expert. If the expert witness does not meet this threshold admissibility requirement, his or her evidence should not be admitted. Once this threshold is met, however, remaining concerns about an expert witness’s compliance with his or her duty should be considered as part of the overall cost-benefit analysis which the judge conducts to carry out his or her gatekeeping role.

c) Imposing this additional threshold requirement is not intended to and should not result in trials becoming longer or more complex. The trial judge must determine, having regard to both the particular circumstances of the proposed expert and the substance of the proposed evidence, whether the expert is able and willing to carry out his or her primary duty to the court. Absent challenge, the expert’s attestation or testimony recognizing and accepting the duty will generally be sufficient to establish that this threshold is met. However, if a party opposing admissibility shows that there is a realistic concern that the expert is unable and/or unwilling to comply with his or her duty, the proponent of the evidence has the burden of establishing its admissibility. Exclusion at the threshold stage of the analysis should occur only in very clear cases in which the proposed expert is unable or unwilling to provide the court with fair, objective and non-partisan evidence. Anything less than clear unwillingness or

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inability to do so should not lead to exclusion, but be taken into account in the overall weighing of costs and benefits of receiving the evidence.

d) The concept of apparent bias is not relevant to the question of whether or not an expert witness will be unable or unwilling to fulfill its primary duty to the court. When looking at an expert’s interest or relationship with a party, the question is not whether a reasonable observer would think that the expert is not independent. The question is whether the relationship or interest results in the expert being unable or unwilling to carry out his or her primary duty to the court to provide fair, non-partisan and objective assistance.

e) Finding that expert evidence meets the basic threshold does not end the inquiry. Consistent with the structure of the analysis developed following Mohan, the judge must still take concerns about the expert’s independence and impartiality into account in weighing the evidence at the gatekeeping stage. At this point, relevance, necessity, reliability and absence of bias can helpfully be seen as part of a sliding scale where a basic level must first be achieved in order to meet the admissibility threshold and thereafter continue to play a role in weighing the overall competing considerations in admitting the evidence. At the end of the day, the judge must be satisfied that the potential helpfulness of the evidence is not outweighed by the risk of the dangers materializing that are associated with expert evidence (paragraph 54).

Where an expert appears to have adopted the role of advocate for a party, that witness will not be impartial and the evidence should not be admitted. See: Bruff-Murphy, supra.

The court should clearly define the subject area of a witness’s expertise and vigorously confine the witness’s testimony to it. See: the Goudge Report, pages 471-475; Brandiferri v. Wawanesa Mutual Insurance Co., 2011 ONSC 3200.

At the core of the admissibility analysis is the reliability of the proposed evidence. Unreliable evidence should never be necessary. Unreliable evidence cannot support a fact in issue – so it can’t be relevant. Reliability is also a critical consideration at the gatekeeper stage as it will not be worth the time and cost involved to introduce unreliable evidence. See: The Motherisk Report at pg. 34; The Goudge Report, pars. 477-479; R. v. Abbey, 2009 ONCA 624; Children’s Aid Society of Toronto v. D.S., 2013 ONCJ 531.

Above from: G.S.W. v. C.G., 2018 ONCJ 286 where court excluded evidence of psychologist unilaterally retained by mother. The witness opined on the parenting plan and needs of the child without ever meeting the child or the father or reading the reasons of the judge who had transferred custody of the child to the father.

From: R. v. Abbey (2) 2017 ONCA 640:

[48]      The test may be summarized as follows:

Expert evidence is admissible when:

(1) It meets the threshold requirements of admissibility, which are:

a.   The evidence must be logically relevant;

b.   The evidence must be necessary to assist the trier of fact;

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c.   The evidence must not be subject to any other exclusionary rule;

d.   The expert must be properly qualified, which includes the requirement that the expert be willing and able to fulfil the expert’s duty to the court to provide evidence that is:

                                      i.        Impartial,

                                    ii.        Independent, and

                                    iii.       Unbiased.

e.   For opinions based on novel or contested science or science used for a novel purpose, the underlying science must be reliable for that purpose,

and

(2) The trial judge, in a gatekeeper role, determines that the benefits of admitting the evidence outweigh its potential risks, considering such factors as:

a.   Legal relevance,

b.   Necessity,

c.   Reliability, and

d.   Absence of bias.

[49]      In short, if the proposed expert evidence does not meet the threshold requirements for admissibility it is excluded. If it does meet the threshold requirements, the trial judge then has a gatekeeper function. The trial judge must be satisfied that the benefits of admitting the evidence outweigh the costs of its admission. If the trial judge is so satisfied then the expert evidence may be admitted; if the trial judge is not so satisfied the evidence will be excluded even though it has met the threshold requirements.

[50]      On this appeal, of the threshold requirements for admissibility, only the fourth criterion – whether Totten is a properly qualified expert – is in issue. It is not in dispute that Totten’s expert evidence on gang culture was logically relevant to the key issue in the case, the identity of the shooter; that it was necessary to assist the jury in determining who the shooter was, in the sense that the meaning of a teardrop tattoo was beyond the knowledge of the jurors; and that it was not subject to any other exclusionary rule. And it is not in dispute that the fifth criterion, as framed, has no application as Totten’s opinion was not based on novel science or on a novel scientific theory. See Abbey #1, at para. 116.

[51]      Of the enumerated factors to be considered at the gatekeeper stage, the three that are applicable are legal relevance, reliability and the absence of bias.

[52]      Before leaving the White Burgess test for the admissibility of expert evidence, I make three additional points, which I will elaborate on when discussing the fresh evidence.

[53]      First, recent case law, including White Burgess itself, has emphasized the importance of the trial judge’s gatekeeper role. No longer should expert evidence be routinely admitted with only its weight to be determined by the trier of fact. As Cromwell J. said in White Burgess, at para. 20, “[t]he unmistakable overall trend of the jurisprudence, however, has been to tighten the admissibility requirements and to enhance the judge’s gatekeeping role”. Cromwell J.’s observation echoes the point Binnie J. made in the earlier Supreme Court of Canada decision R. v. J.-L.J., 2000 SCC 51  (CanLII) , [2000] 2 S.C.R. 600, at para. 28: “The admissibility of the expert evidence should be scrutinized at the time it is proffered, and not allowed too easy an entry on the basis that all of the frailties could go at the end of the day to weight rather than admissibility.”

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[54]      Second, case law since Mohan has also emphasized the importance of the reliability of the evidence to its admissibility. See, for example, R. v. J.-L.J. and R. v. Trochym, 2007 SCC 6  (CanLII) , [2007] 1 S.C.R. 239. In Abbey #1, at para. 87, Doherty J.A. pointed out that at the gatekeeper stage of admissibility the reliability of the proposed expert evidence is central to its probative value and thus to the benefits of admitting it. And as I will discuss, the unreliability of Totten’s opinion evidence on teardrop tattoos, as demonstrated by the fresh evidence, is what disqualifies its admission.

[55]      The third and final point is that in White Burgess, at para. 45, Cromwell J. resolved a debate in the case law and held that an expert’s lack of impartiality and independence and an expert’s bias go to the admissibility of the expert’s evidence as well as to its weight, if admitted. At the admissibility stage these qualities are relevant to the threshold requirement of a properly qualified expert, and they are again relevant at the gatekeeper stage. Cromwell J., however, did point out at para. 49 of his reasons that rarely will a proposed expert’s evidence be ruled inadmissible for failing to meet this threshold requirement.

R. v. Mohan 1994 89 CCC (3d) 402

Four- part test:

a. Relevance1) Does the evidence prove or tend to disprove a fact in issue?2) Is the opinion founded on proven facts?3) Does the opinion support the inference sought to be made from it?4) Is the matter that it proves in issue?5) Is the evidence reliable?6) Is the evidence complex? Is it easily understood or likely to confuse?7) How much time will it consume?

b. Necessity

1) It must be necessary to assist the trier of fact, more than just helpful2) Will it allow the court to appreciate the technicalities of a matter in issue?3) Will it provide information likely to be outside the experience of the trier

of fact?4) Is the trier of fact unlikely to from a correct judgment about a matter in

issue if unassisted by the evidence?5) Is the need for the evidence sufficient to overcome its potential prejudicial

effect?6) To what extent is other evidence available to assist in determining the

issue?7) What is the level of complexity? Is it easily understood or likely to

confuse?

c. The absence of an exclusionary rule

d. A Properly Qualified expert. - Strength of the expert - professional qualifications, participation in associations, actual experience, teaching, keeping

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up with the literature, participation in courses , the number of times qualified before.

Experts - Critiques

Critique evidence is rarely appropriate. It generally – as here - has little probative value, adds expense and risks elevating the animosity between the parties.  M. v. F., 2015 ONCA 277.

However, critique evidence was permitted in Halton Children’s Aid Society v. A.W., [2016] O.J. No. 3219. The court distinguished between high conflict domestic cases and child protection cases writing:

The use of critique evidence by vulnerable parents in child protection proceedings commenced by the state against them is fundamentally different than the critique evidence used in a high conflict parenting dispute about overnight visitation, which was the case of M. v. F., supra. Other courts have admitted expert critique evidence in child protection proceedings. See C.A.S of Simcoe v. D. (B.), 2014 ONSC 2140 (Div. Court), affirming 2013 ONSC 1610; C.A.S. of Toronto. v. K.O. (2004), 50 R.F.L. (5th) 298; C.A.S. of the Regional Municipality of Waterloo v. L.,2004 ONCJ 116 (Ont. C.J.).

In this case, the critique evidence of Dr. Kalia relates to a section 54 assessment under the CFSA for use in a child protection proceeding where the state is a party (and the applicant) to the proceeding and the order being sought is crown wardship--the permanent severance of the parent-child relationship. Further, the critique was solely concerned with the validity and reliability of the scientific testing conducted, as well as the methodology and process used by Dr. Blake in determining parenting capacity. The voir dire conducted demonstrated that Dr. Kalia's expertise clearly met the Mohan test for admissibility.

In Children’s Aid Society of Toronto v. O. (K.) (2004) 50 R.F.L. (5th) 298 (OCJ), a critique of a report for cultural insensitivity by a non-psychologist was ruled inadmissible as it did not achieve threshold reliability. Justice Robert Spence wrote that threshold reliability is of particular importance when the consideration is with respect to the “soft sciences, such as behavioural science in this case.”

Experts – Cross-examination

Can’t introduce books or articles under this guise. Must ask if familiar. If they say no, can’t read. R. v. Marquard 1993 85 CCC (3d) 193 SCC. You can put to the expert publications that run contrary to his opinion and see if he will admit that they exist and try to explain them away. In such cases, you must put the article to the witness, have him accept that the publication is a reasonable and respected publication, and that the author is recognized in his field. If the witness will not admit these things you will have to leave the proof of that article to your own witness.

Questions put to an expert witness that are premised on unproven or disputed facts should be framed as hypothetical questions, but the hypotheticals must not assume facts which are known to be inadmissible. R. v. Kelly (1990) 59 CCC 3d 497 CA.

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Experts - General

Experts may testify about the general state of knowledge in their field, or it they consider the works authoritative, may quote from texts from others. Director of Child Welfare of Prince Edward Island v. W.(N.) (1994), 10 R.F.L. 4th 203 (PEI C.A).

A witness cannot provide an opinion on a pure question of law, unless the legal term holds the same meaning as the lay term. The Law of Evidence, Paciocco and Steusser, 5th edition, pg. 188.

The court directed that two valuation experts testify consecutively in Glass v. 618717 Ontario Limited, 2011 ONSC 2926.

Experts – Participant vs. Litigation Experts

The Court of Appeal in Westerhof v. Gee, 2015 ONCA 206, distinguished between litigation experts (hired for the litigation) and participant and non-party experts, writing at paragraphs 60-64:

[60] Instead, I conclude that a witness with special skill, knowledge, training, or experience who has not been engaged by or on behalf of a party to the litigation may give opinion evidence for the truth of its contents without complying with rule 53.03 where:• the opinion to be given is based on the witness’s observation of or participation in the events at issue; and• the witness formed the opinion to be given as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events.

[61] Such witnesses have sometimes been referred to as “fact witnesses” because their evidence is derived from their observations of or involvement in the underlying facts. Yet, describing such witnesses as “fact witness” risks confusion because the term “fact witness” does not make clear whether the witness’s evidence must relate solely to their observations of the underlying facts or whether they may give opinion evidence admissible for its truth. I have therefore referred to such witnesses as “participant experts”.

[62] Similarly, I conclude that rule 53.03 does not apply to the opinion evidence of a non-party expert where the non-party expert has formed a relevant opinion based on personal observations or examinations relating to the subject matter of the litigation for a purpose other than the litigation.

[63] If participant experts or non-party experts also proffer opinion evidence extending beyond the limits I have described, they must comply with rule 53.03 with respect to the portion of their opinions extending beyond those limits.

[64] As with all evidence, and especially all opinion evidence, the court retains its gatekeeper function in relation to opinion evidence from participant experts and non-party experts. In exercising that function, a court could, if the evidence did not meet the test for admissibility, exclude all or part of the opinion evidence of a participant expert or non-party expert or rule that all or part of such evidence is not admissible for the truth of its contents. The court could also require that the participant expert or non-party expert comply with rule 53.03 if the participant or non-party expert’s opinion went beyond the scope of an opinion formed in the course of treatment or observation for purposes other than the litigation.

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Not every participant expert can give opinion evidence. It must be relevant. So, for example, if a party self reports medical conditions and the doctor uses the self reporting to opine that the party cannot be employed, the gatekeeper function of the judge remains in place and that kind of evidence will be inadmissible. Epstein, Family Law Newsletter, May 18, 2015.

In Imeson v. Maryvale (Maryvale Adolescent and Family Services) 2018 ONCA 888 the court found that a participant expert ought not to have been permitted to provide opinion evidence that went to the issues of whether the alleged sexual assaults occurred (liability) and whether Mr. Imeson suffered harm that was caused by such assaults (causation). The expert opinions that were elicited in this trial for such purposes went beyond the doctor’s role as a participant expert under Westerhof (Westerhof v. Gee Estate, 2015 ONCA 206. Under Westerhof, a participant expert’s exemption from r. 53.03 is lost to the extent the expert’s opinion is not based on the expert’s observation of or participation in the relevant events and not formed as part of the ordinary exercise of his or her skill, knowledge, training and experience while observing or participating in such events. Furthermore, the doctor’s expert opinions going to the issues of liability and causation failed to satisfy the threshold requirements of admissibility under the first step of Mohan (R. v. Mohan, 1994 CanLII 80 (SCC), [1994] 2 S.C.R. 9), as that test has been clarified in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), [2015] 2 S.C.R. 182, and ought to have been excluded under the second step of the admissibility test because the prejudicial effect of such evidence outweighed its probative value.

Westerhof has been held to apply as well to the Family Law Rules. Jewish Family and Child Service v. S.K., 2015 ONCJ 246 (where treating doctor reports for a child were admitted, the society having provided notice under section 52 of the Evidence Act). Hospital records also admitted to establish mental health concerns of mother in Children’s Aid Society of Toronto v. C.T., 2017 ONCJ 420.

Experts - reports

Counsel are entitled to review draft reports of experts they have retained. Absent a factual foundation to support a reasonable suspicion that counsel improperly influenced the expert, a party should not be allowed to demand production of draft reports or notes of interactions between counsel and an expert witness.

If an expert’s report has not been entered into evidence as an exhibit, it has no evidentiary value, even if provided to the judge as an aide memoire. Inconsistencies between the oral evidence of the witness and his or her report are the proper subject of cross-examination, but if the witness is not cross-examined, the judge can’t weigh any inconsistencies in the report.

Moore v. Getahun, 2015 CarswellOnt 911 (C.A.)

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Subrule 23 (23) of the Family Law Rules requires 14 days notice, attaching the report and C.V. Failure to give adequate notice was a factor in disallowing the proposed expert to testify in Catholic Children’s Aid Society of Toronto v. M.M. [2012] O.J. No. 2717 (OCJ).

Experts – Assessments ordered under the CYFSA

In Halton Children’s Aid Society v. J.B. and D.T., 2018 ONCJ 884, the court applied the White-Burgess test and refused to admit the evidence of a court-ordered assessor. The fatal flaw was that the assessor had represented that she was a clinical psychologist, when this was not the case. The court expressed the view that a voir dire on an expert’s qualifications to give opinion evidence on a section 98 assessment should be held routinely before the trial judge, especially when the opinions expressed in the report are not accepted by all the parties and the answers in the assessment report to the questions posed in the assessment order, if accepted, would provide ready-made answers to the very questions before the court.

The court wrote as follows:

[28] In my role as gatekeeper, I am required to scrutinize the evidence to insure that the opinion evidence proffered meets a minimum threshold of reliability before its admission into the record.  Even then admissible evidence should still be excluded if the prejudicial value of the evidence outweighs its probative value. See R. v. Bingley, 2017 SCC 12 (CanLII), 345 C.C.C. (3d) 306 , at para 6

[29] As Laskin, J.A. in R. v. Abbey, 2017 ONCA 640 (CanLII) para 115 wrote when discussing the value of certain expert evidence,

Expert evidence of dubious or questionable reliability has little probative value, and offers little benefit to the trial process.  At the same time, evidence of questionable reliability risks distorting and prejudicing the fact-finding process:  see Mohan, at p. 21

Experts – Technological evidence Not all technology needs to be explained by expert witnesses, even when judicial notice is not an appropriate basis for its understanding. Individuals who are qualified because of their knowledge, observations and experience to provide reliable and understandable factual evidence about the operation of new technologies may do so without the need for a voir dire, and without the need to meet the expert evidence admissibility tests. R. v. Hamilton [2011] O.J. No. 2306 (C.A.). For instance, a judge may not know how video games operate, but most 10 year olds, can give a detailed explanation. The key is whether it is easily understood and not a matter of controversy.

The rule regarding expert testimony can be stated as follows:

If specialized knowledge will assist the judge to understand the evidence or a fact in issue, a witness qualified as an expert by knowledge, skill, experience or training may testify by way of opinion. The expert must possess special knowledge and experience

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going beyond that of the judge. It is only admissible if it is needed to allow the judge to make sense of the evidence. R. v. D.D. [2000] S.C.J. No. 44.

Experts - Threshold Reliability:

Justice Goudge, after reviewing the case law, sets out the following factors the trial judge should focus on in determining threshold reliability at pg. 495 of his report:

a) The reliability of the witness, including whether the witness is testifying outside his or her area of expertise;b) The reliability of the scientific theory or technique on which the opinion draws, including whether it is generally accepted and whether there are meaningful peer review, professional standards and quality assurance processes;c) Whether the expert can relate his or her particular opinion in the case to a theory or technique that has been or can be tested, including substitutes for testing that are related to the particular discipline;d) Whether there is a serious dispute or uncertainty about the science and, it so, whether the trier of fact will be reliably informed about the existence of that dispute or uncertainty;e) Whether the expert has adequately considered alternative explanations or interpretation of the data and whether the underlying evidence is available for others to challenge the expert’s interpretation;f) Whether the language that the expert proposes to use to express conclusions is appropriate, given the degree of controversy or uncertainty in the underlying science; andg) Whether the expert can express the opinion in a manner such that the trier of fact will be able to reach an independent opinion as to the reliability of the expert’s opinion.

Experts – Urine testing

Minister of Community Services v. JM and RR, 2018 NSSC 31:

Court did not qualify lab director as able to provide expert opinion evidence about the results of urine testing from samples taken from a father during a child protection case because:

1.The reliability of the lab and the director were intertwined.

2. It was a clinical, not a forensic lab.

3. The lab hasn’t applied for forensic designation.

4. The lab is not subject to external proficiency testing or outside agency oversight. External proficiency testing and oversight would provide independent assurance that the lab is free from random or systemic error that could lead to a flawed test result. It is analogous to peer review. Its absence caused the court to proceed cautiously.

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5. Little comfort was drawn from internal quality controls and self-reporting.

In Nova Scotia (Minister of Community Services) v. J.M. 2018 NSCA 71, this decision was overturned on appeal for the following reasons:

1. The trial court conflated the qualifications of the laboratory with those of the proposed expert. It was inappropriate to do that at the first stage of the White Burgess test (the Mohan factors). The expert’s qualifications and the admissibility of the lab results were separate questions.

2. The appeal court found that the proposed expert had the necessary expert qualifications.

3. The trial court incorrectly found the proposed expert to be biased because he worked for the laboratory.

4. The trial court incorrectly found the urine tests to be unreliable because it was a clinical and not a forensic lab. What was important was that the lab used forensic standards. The Crown did not have the obligation to prove that the lab was forensic – they had to establish the admissibility of the expert evidence – no more and more less. This did not mean the Crown had to establish that the information underlying the expert’s opinion was accurate; only that it was sufficiently reliable to be considered by a trier of fact who makes the ultimate decision on reliability (par. 31).

5. In the second part of the White Burgess test (the gatekeeper/cost-benefit analysis), the trial court neglected to assess the benefits of admitting urine analysis, such as:

a) They address protection issues.

b) They provide impartial eyes on whether a parent is using drugs.

c) They can benefit parents to show that they are not using drugs.

6. The trial court incorrectly found that the laboratory did not follow internationally recognized standards.

7. The appeal court found urine testing to be reliable evidence and that the testing in this case was conducted and interpreted appropriately.

D.E. v. C.S., 2017 ONCJ 668 – court did not admit urine tests without expert on a temporary motion. Court also made order for interim disbursements that might include costs to retain expert on urine test issue.

Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661 – court would not find urine testing credible and trustworthy on a temporary care motion without first conducting a voir dire.

A similar outcome was reached in CAST v. T.L., 2018 ONCJ 691. The court said that the Society could have filed a much more detailed affidavit aimed at providing an interpretation of the tests and establishing their reliability. If the parents objected, there could have been a voir dire, or the Court may have

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decided to hold one. Instead, the society said it would not rely on positive drug test results. However, it became clear that those test results had informed the decision making of the society – they had been indirectly relied upon. The court concluded that drug testing may be used in a child protection proceeding, even after Motherisk. However, to do so, the testing must be done properly, admitted into evidence properly, explained properly and its limits properly qualified. A voir dire may be required to do this.

Finding – Emotional Harm

In order to substantiate a finding of emotional harm, a clinical diagnosis is not necessary, but expert evidence is usually required: Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (ON S.C.); Re S.(D.) [2001] CarswellOnt 733 Ont. S.C.J.; Catholic Children’s Aid Society of Hamilton-Wentworth v. C.L. [2002] O.J. No. 4255; N.V.C. v. Catholic Children's Aid Society of Toronto [2017] O.J. No. 525. 

To the contrary:

In assessing the evidence, the court does not require expert evidence to determine whether actual emotional harm has occurred or whether there is an ongoing risk of emotional harm.  Simcoe Muskoka Child, Youth and Family Services v L.V., 2016 ONSC 7039 (CanLII). However, in meeting its burden of proof under these sections of the Act, it is not sufficient for the society to simply establish that the child is merely sad or is experiencing some minor emotional unhappiness while in the care of her mother.  The evidence must disclose on a balance of probabilities that the harm to the child is “serious”. Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447.

…and from: Chukwunomso v. Ransome, 2017 ONCJ 121

I am aware of the recent decision in the case of N.V.C. v. Catholic Children's Aid Society of Toronto [2017] O.J. No. 525.  In paragraphs 101 and following of that decision, Wilson, J., seems to suggest that a court is precluded from deciding that a child is at risk of emotional harm without evidence from an expert.  If I correctly understand that to be the learned judge’s reasoning, I must respectfully disagree.  Courts will often make decisions about emotional harm – or risk of emotional harm – to a child based on panoply of evidence.  That panoply may include an expert’s report.  But an expert’s report is only one piece of evidence.  In my view, the presence or absence of an expert’s report regarding harm, or potential harm to a child, is neither conclusive nor, in many cases, even mandatory in order to permit the court to arrive at a correct conclusion.  For example, in Simcoe Muskoka Child, Youth and Family Services v. L.V., 2016 ONSC 7039 (CanLII), Quinlan, J. stated at paragraph 18: “Expert evidence will sometimes [my emphasis] be required to establish a risk of emotional harm, but it is not a necessary prerequisite”.  As well, see paragraphs 31 and 32 of the decision of Parfett, J. in Children's Aid Society of Ottawa v. P.Y., 2007 CanLII 14325 (ON SC) for a similar opinion.  Furthermore, courts are required to consider not only the available evidence in any case – expert or otherwise - but, as well, judges should employ intelligence and common sense in drawing logical inferences from their general understanding of life itself.  This application of intelligence and common sense is often referred to as taking judicial notice.  An example of this application of judicial notice in the context of satisfying a court that emotional harm has occurred, can be found in the decision of MacAdam, J. in A.B.C. v. Nova Scotia (Attorney General), 2011 NSSC 475 (CanLII), where the learned judge

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stated in paragraph 50: “Experts are not required to establish that ABC suffered psychological and emotional harm as a result of the assaults by Lalo.  The court is entitled to take judicial notice that such effects can be expected [my emphasis] albeit they may not occur in every case.”

Sometimes, the evidence of a child's distressed reactions to parental behaviour is sufficiently clear that a finding can be made without the opinion of an expert. Children's Aid Society of Ottawa v. P.Y. and A.S., (2007) O.J. 1639 (S.C.J.); Catholic Children's Aid Society of Toronto v. E.S., [2016] O.J. No. 2558; Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447.

A child who rejects a parent and won’t return to their care may be at risk of emotional harm. Children’s Aid Society of Dufferin v. R.N, 2014 ONCJ 176.

Constantly taking a child unnecessarily for medical treatment can place a child at risk of emotional harm. Children’s Aid Society of London and Middlesex v. S.E., 2016 ONSC 3987.

All of the mother’s lack of insight, her inability or unwillingness to acknowledge her daughter’s feelings of stress, fear and anxiety – revealed to the court that there was an ongoing risk of emotional harm to the child. Jewish Family and Child Services from Greater Toronto v. Ki. Sl., 2017 ONCJ 447.

Exposure to a pattern of domestic violence has been accepted as creating a risk of emotional harm: Children’s Aid Society of Toronto v. S.A.C., [2005] O.J. No. 2154 (O.C.J.), aff’d [2005] O.J. No. 4718 (S.C.), aff’d 2007 ONCA 474, leave to appeal to S.C.C. refused [2007] S.C.C.A. No. 462); Jewish Family and Child Service v. K.(R.), 2008 ONCJ 774, affirmed at Jewish Family and Child Service v. R.K., [2009] O.J. No. 5422, (Ont. C.A.). In Children’s Aid Society of Toronto v. S.A.C, supra after hearing expert evidence on domestic abuse, Justice Zuker conducted a lengthy review of caselaw involving domestic violence in child protection, as well as social science literature on the effects of abuse, the dynamics of abusive relationships, and the interplay between domestic violence and substance abuse. His findings include:

Witnessing violence perpetrated against their mother may have an abusive and detrimental impact on a child’s development.

Children may feel guilty, blame themselves and feel depressed.

They can develop fears, insecurity and low self-esteem as a result of witnessing domestic violence

They can suffer emotional confusion that can result in bedwetting, nightmares, sleeping or eating disturbances, self-harm and weight loss.

Hearsay – (also see Child Statements)

R. v. Khelawon [2006] SCJ No. 57. – Principled Approach

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The essential defining features of hearsay are the fact that it is an out of court statement adduced to prove the truth of its contents and the absence of a contemporaneous ability to cross- examine the statement.

Hearsay is presumptively inadmissible unless it falls within a traditional exception or if indicia of reliability and necessity are established on a voir dire (the principled exception).

The reliability requirement can be met by showing that:

1. There is no real concern about whether the statement is true or not because of the circumstances it came about.

2. Or, that no real concern arises from the fact that the statement is presented in hearsay form because, in the circumstances, its truth and accuracy can nonetheless be sufficiently tested by means other than contemporaneous cross-examination. i.e. where tested in prior proceeding.

These categories aren’t mutually exclusive.

As Justice Charron explained in Khelawon, at para. 35, the hearsay rule reflects the value our criminal justice system places on live, in-court testimony:

Our adversary system puts a premium on the calling of witnesses, who testify under oath or solemn affirmation, whose demeanour can be observed by the trier of fact, and whose testimony can be tested by cross-examination. We regard this process as the optimal way of testing testimonial evidence. Because hearsay evidence comes in a different form, it raises particular concerns. The general exclusionary rule is a recognition of the difficulty for a trier of fact to assess what weight, if any, is to be given to a statement made by a person who has not been seen or heard, and who has not been subject to the test of cross-examination. The fear is that untested hearsay evidence may be afforded more weight than it deserves.

The trial judge acts as a gatekeeper for determining threshold reliability and leaves the ultimate determination to the fact finder.

The factors considered in the admissibility inquiry cannot be categorized in terms of threshold or ultimate reliability. All relevant factors should be considered, including the presence of supporting or contradictory evidence (overrules Starr).

In determining admissibility the court should take a more functional approach, focusing on the dangers of the hearsay tendered and on the circumstances relied upon by the proponent to overcome those dangers.

When the reliability requirement is met on the basis that the trier of fact has a sufficient basis to assess the statement’s truth and accuracy, there is no need for the trial judge to inquire further into the likely truth of the statement. When reliability is dependant on the

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inherent trustworthiness of the statement, the trial judge must inquire into those factors tending to show that the statement is true or not. In determining threshold reliability, the trial judge must guard against evidence which is unnecessary or the reliability of which is neither readily apparent from the trustworthiness of its contents or capable of being meaningfully tested by the ultimate trier of fact.

Hearsay evidence is presumptively inadmissible because of the difficulties inherent in testing the reliability of the declarant's assertion. Apart from the inability of the trier of fact to assess the declarant's demeanour in making the assertion, courts and commentators have identified four specific concerns. They relate to the declarant's perception, memory, narration, and sincerity: Ibid, at para. 2; R. v. Starr, 2000 SCC 40, at para. 159. First, the declarant may have misperceived the facts to which the hearsay statement relates; second, even if correctly perceived, the relevant facts may have been wrongly remembered; third, the declarant may have narrated the relevant facts in an unintentionally misleading manner; and finally, the declarant may have knowingly made a false assertion. The opportunity to fully probe these potential sources of error arises only if the declarant is present in court and subject to cross-examination. R. v. Baldree, [2013] S.C.J. No. 35.

Gestures are capable of being characterized as a statement or utterance. While statements and utterances are usually verbal, consisting of the spoken word, conduct may also convey meaning. See: R. v. Nurse, 2019 ONCA 260.

The test for necessity is not whether the hearsay statement is the best form of the evidence (for that will always be live testimony), but whether it is the "best available form" in the circumstances. R. v. Couture, 2007 SCC 28.

There are three steps to assessing hearsay admissibility:1. Is the statement hearsay? If not, admissible.2. If hearsay, is it admissible under a categorical exception?3. If hearsay and not within a categorical exception, is it admissible under principled

approach?R. v. Starr, 2000 SCC 40.

First Nations, Inuit or Metis Identification

In paragraph 65 of Children’s Aid Society of Algoma v. A.W., 2019 ONCJ 242, the court set out a non-exhaustive list of evidence that would be helpful when determining if the identification should be made as follows:

(a) the maternal grandfather’s name, date of birth, place of birth, location of residence and more particulars about how the father sees or other family members has seen the maternal grandfather to have been “aboriginal”;

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(b) the band or which the maternal grandfather was a member, if any, or with which he was associated, affiliated or identified;

(c) the names of siblings of the maternal grandfather, if any, and any band or First Nations community of which any sibling of the maternal grandfather was a member, if any, or with which he or she was associated, affiliated or identified;

(d) the maternal grandmother’s name, date of birth, location of residence during her relationship with the maternal grandfather and more particulars about her familial history, including identification, association or membership in any band or First Nations community, if any, including whether it was the same band or First Nations community of the maternal grandfather or otherwise;

(e) particulars about any siblings of the father’s mother, C. S., regarding what, if any, identification, association or membership in any band or First Nations community any of the father’s maternal aunts or uncles;

(f) what involvement or interaction the father has had in his life with the Batchewana First Nation or any First Nations community; and

(g) any historical information regarding the Batchewana First Nation that would assist the court regarding the issue of understanding its process of identifying persons who are members or who have recognized associations or affiliations with the Batchewana First Nation.

Hearsay - Exceptions

Admissions – must be by a party, but can be by their agent.

Admission against Interest – can be by non-party. Necessity established by not being available. Must be against pecuniary or proprietary interest.

Business Records – either under s. 35 or common-law. Does not make documents admissible. Common-law exception requires personal knowledge by the maker. Ares v. Venner [197] 1 SCR 608, permits opinion in medical records. Can also do this by joint section 35 and 52 notices in the Evidence Act. Statements by third parties in these records, not under a duty to record should be excluded. Setak Computer Services Corporation Ltd. v. Burroughs Machines Ltd. (1977) 15 O.R. (2d) 750. Under section 35 of the Evidence Act the record must:

1. Be made in the usual and ordinary course of business.2.It must be in the usual and ordinary course of business to record the act right away or soon after.3. Must give 7 days notice.4. Must be made contemporaneously.5. The record must be an original, or if not, a permissible copy.

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6. The record must be complete and genuine (authentication).

The last two requirements are not hearsay exceptions, but best evidence and authentication requirements that apply to all evidence.

Court found it was appropriate to introduce the evidence of 10 access supervisors through the business record exception in D.J. v. S.F., 2017 ONCJ 879. To the contrary, in Catholic Children’s Aid Society v. C.C., 2011 ONCJ 598, the court found that it was unfair to a self-represented litigant to introduce voluminous access notes of supervisors and excluded them. Court found them not to be pragmatically relevant – it was unjust and unrealistic to make the mother go through hundreds of pages of notes and respond to them.

Police records can be admissible as business records. However supplementary arrest records aren’t as they contain third party complaints and opinions on bail. The synopsis is also excluded if the facts aren’t admitted. Documents not made contemporaneously are also excluded. CCAS Toronto v. J.L. [2003] O.J. No. 1722 (OCJ).

The presentation of relevant historical evidence by the current worker could meet the threshold test for necessity and reliability. Such evidence may be relevant in so far as it provides a back drop against which to consider the current situation.  The hearsay may be necessary having regard to the number of previous workers and other information sources involved, and difficulties contacting them. Information recorded might be admissible under s. 93(1) of the CYFSA (formerly subsection 50 (1) of the CFSA and/or section 35 of the Evidence Act. The recorded information may be more reliable than direct evidence that might be available from these individuals today. Previous orders or agreements reached as to the care of these older children might provide some corroboration as to the accuracy of events recorded. The Children’s Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757.

Information from the police, school authorities and medical professionals who are bound by a duty to report issues of child abuse or neglect can be relied upon for their truth, when contained in CAS records when Evidence Act notice for business records was served. See: N.P. v. D.B., 2019 ONCJ 291.

Documents in Possession Doctrine – Those which have been in their possession are generally admissible to show their knowledge. R. v. Container Materials Ltd. (1940) 4 D.L.R. 292 (Ont.H.C.). Will constitute an admission to prove the truth of their contents if the person has in any way recognized, adopted or acted on the documents.

Medical Reports – s. 52 of the Evidence Act. Must give 10 days notice and attach report. Must seek leave to file report. If call them, might be liable for costs. Must produce for examination. Carew v. Loblaws Limited (1977) 18 O.R. (2d) 660 (HC). If report is filed, it is evidence.

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Non-Hearsay purposes – Warnings, threats, misrepresentations, operative legal words: contract, loan or to explain subsequent behaviour.

Past Recollection Recorded – see below.

Proof of Prior Convictions – s. 12 of the Evidence Act allow you to ask the witness if they have been convicted of a crime. Proof of prior inconsistent statement – Sections 20 and 21 Ontario operate together to make notice to the witness of the inconsistent statement a precondition to admission of extrinsic evidence to prove it. This provides the witness an opportunity to adopt, explain or elaborate on the statement. The witness should be advised in cross-examination of:

1. the time, place and person involved in the prior statement2. the substance of the statement3. those parts of the statement to be used to contradict the witness.4. the witness should then be asked if they made the statement

Proof of Judgments – S. 36 of the Evidence Act;

Public Documents – s. 29 of the Evidence Act. The test for this hearsay exception from section 6.295 of Sopinka, Lederman & Bryant in The Law of Evidence in Canada, (Third Edition, 2009), as follows:

Where an official record is necessarily subject to public inspection, the facility and certainty with which errors would be exposed and corrected provides an additional guarantee of accuracy.  Before this exception to the hearsay rule comes into play, however, the following preconditions, cumulatively providing a measure of dependability, must be established:

1.   The subject matter of the statement must be of a public nature.2.   The statement must have been prepared with a view to being retained and kept as a public record.3.   It must have been made for a public purpose and available to the public for inspection at all times.4.   It must have been prepared by a public officer in pursuance of his or her duty.

In Scarlett v. Farrell, 2014 ONCJ 645, the court found that a decision of the Criminal Injuries Compensation Board was not a public document, as publication was prohibited and the proceedings were closed to the public.

Res Gestae (spontaneous utterance) exception - …a spontaneous statement made under the stress or pressure of a dramatic or startling act or event and relating to such an occasion may be admissible as an exception to the hearsay rule. The stress or pressure of the act or event must be such that the possibility of concoction or deception can be safely discounted. The statement need not be made strictly contemporaneous to the occurrence so long as the stress or pressure created by it is ongoing and the statement is made before there has been time to contrive and misrepresent. The admissibility of such statements is dependent on the possibility of concoction or fabrication. Where the spontaneity of the statement is clear and the danger of fabrication is remote, the evidence should be received. See: R.v. Nurse, 2019 ONCA 260, citing Ratten v. The Queen, [1972] A.C. 378 (P.C.).

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State of Mind Exception – This is exception to hearsay for statements about a person’s physical, mental or emotional state. Must be stating contemporaneous state of mind, not statements of past events. It was created because we have no other way of knowing how someone feels. There is no need for the maker of the statement to be unavailable. These statements are considered reliable enough because we can observe the person’s behaviour and demenour. The test is being contemporaneous, not spontaneous, although it can be both. There is no need for individualized assessment of necessity and reliability. Two limits: Does not include cause/reason for state and cannot be made under circumstances of suspicion. R. v. Starr, 2000 SCC 40.

Court permits child’s counsel to express children’s views and preferences as state of mind hearsay exception. Children’s Aid Society of Algoma (Elliott Lake) v. P.C.-F., 2017 ONCJ 898.

Evidence falling within a traditional exception to the hearsay rule is presumptively admissible, as these exceptions “traditionally incorporate an inherent reliability component.” See: R. v. Nurse, 2019 ONCA 260. There are “rare cases” where evidence that would otherwise be admissible under a traditional hearsay exception may be excluded because it fails to meet the requirements of necessity and/or reliability: See: R. v. Starr, 2000 SCC 40 (CanLII), [2000] 2 S.C.R. 144, at para. 214; and R. v. Mapara, 2005 SCC 23 (CanLII), [2005] 1 S.C.R. 358, at para. 15. The trial judge considered this argument on the merits.

Hearsay – Threshold reliability

From: R. v. M.G.T., 2017 ONCA 736

[114] Hearsay is an out-of-court statement tendered for the truth of its contents. Generally, hearsay is not taken under oath; the trier of fact is deprived of the opportunity to observe the declarant’s demeanour at the time the statement is made; and hearsay cannot be tested through cross-examination: R. v. Bradshaw, 2017 SCC 35 (CanLII), [2017] S.C.J. No. 35, at para. 20. The hearsay statement may be inaccurately recorded. The trier of fact cannot easily investigate the declarant’s perception, memory, narration or sincerity: R. v. Khelawon, 2006 SCC 57 (CanLII), [2006] 2 S.C.R. 787, at para. 2; R. v. Baldree, 2013 SCC 35 (CanLII), [2013] 2 S.C.R. 520, at para. 32.

[115] The presumptive inadmissibility of hearsay may be overcome where its proponent establishes on a balance of probabilities that what is proposed for admission falls within a categorical exception, or satisfies the twin criteria of necessity and threshold reliability under the principled approach: Bradshaw, at paras. 22-23.

[116] A proponent can overcome hearsay dangers and establish threshold reliability by showing, on a balance of probabilities, either that there are adequate substitutes for testing truth and accuracy (procedural reliability), or there are sufficient circumstantial or evidentiary guarantees that the statement is inherently trustworthy (substantive reliability): Bradshaw, at para.

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27; Khelawon, at paras. 61-63; R. v. Youvarajah, 2013 SCC 41 (CanLII), [2013] 2 S.C.R. 720, at para. 30.

[117] Procedural reliability requires adequate substitutes for personal presence, the oath or its equivalent and contemporaneous cross-examination. This is so that the trier of fact has a satisfactory basis to internally evaluate the truth and accuracy of the hearsay statement. Proxies for traditional safeguards include video recording the statement; an oath or its equivalent; a warning about the consequences of lying; and, usually, some form of cross-examination of the declarant, such as at the preliminary inquiry, or of a recanting witness, at trial: Bradshaw, at para. 28.

[118] Substantive reliability is established if the hearsay statement is inherently trustworthy. To determine whether a statement is inherently trustworthy, we are to consider the circumstances in which it was made and any evidence that corroborates or conflicts with it. The standard for substantive reliability is high. This requires that a judge or court be satisfied that the statement is so reliable that contemporaneous cross-examination of the declarant would add little, if anything, to the process: Bradshaw, at para. 40.

Substantive reliability is established if the trier of fact is satisfied that the hearsay statement is so reliable that contemporaneous cross-examination of the declarant would add little if anything to the process. In other words, the statement must have been made under circumstances which substantially negate the possibility that the declarant was untruthful or mistaken. The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.

An assessment as to the accuracy of the recording and observations of a children’s aid worker is procedural, not substantive reliability. The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.

The court can combine procedural and substantive reliability to find threshold reliability, but should be cautious in doing so. R. v. Bradshaw, 2017 SCC 35 (S.C.C.).

Once this threshold is passed, the trier of fact may invoke the discretion to consider the evidence in the fact-finding process. The assessment of the ultimate reliability of the truth and accuracy of the hearsay utterance is, of course, not determined until the trier of fact considers all of the evidence and applies the appropriate standard and burden of proof. The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.

Hearsay – Threshold reliability – Corroborative evidence

“A trial judge can only rely on corroborative evidence to establish threshold reliability if it shows, when considered as a whole and in the circumstances of the case, that the only likely explanation for the hearsay statement is the declarant’s truthfulness about, or the accuracy of, the material aspects of the statement. If the hearsay dangers relate to the

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declarant’s sincerity, truthfulness will be the issue. If the hearsay danger is memory, narration, or sincerity, accuracy will be the issue.”

Corroborative evidence must go to the truthfulness or accuracy of the material aspects of the hearsay statement. Since hearsay is tendered for the truth of its contents, corroborative evidence must go to the truthfulness or accuracy of the content of the statement that the moving party seeks to rely on.

R. v. Bradshaw, 2017 SCC 35 (S.C.C.)[56] Clarifying when corroborative evidence can be relied on to establish substantive reliability is not a departure from the functional approach to the admissibility of hearsay. There is no bright-line rule restricting the type of corroborative evidence that a trial judge can rely on to determine that substantive reliability is established. In all cases, the trial judge must consider the specific hearsay dangers raised by the statement, the corroborative evidence as a whole, and the circumstances of the case, to determine whether the corroborative evidence (if any) can be relied on to establish substantive reliability. 

[57] In sum, to determine whether corroborative evidence is of assistance in the substantive reliability inquiry, a trial judge should:  

1. Identify the material aspects of the hearsay statement that are tendered for their truth.

2. Identify the specific hearsay dangers raised by those aspects of statement in the particular circumstances of the case. 

3. Based on the circumstances and these dangers, consider alternative, even speculative, explanations for the statement.

4. Determine whether, given the circumstances of the case, the corroborative evidence led at the voir dire rules out these alternative explanations such that the only remaining likely explanation for the statement is the declarant’s truth.

 Corroborative evidence is not capable of enhancing the procedural reliability of a hearsay statement, just substantive reliability. The Children’s Aid Society of St. Thomas and Elgin v. A.H., 2017 ONCJ 852.

Internet Articles: Documents on Internet to contradict expert not admitted - “It is insufficient to come to this court and simply attempt to file articles found on the internet which relate to the effect of Cortisol on the brain.  There is no opinion from anyone qualified to give one that these articles are authoritative.  Absent such evidence, they are of no evidentiary value and are inadmissible”. Children's Aid Society of the Regional Municipality of Waterloo v. S.S., 2010 ONCA 630 (CanLII).Internet articles are not admissible by themselves because the author of the opinion has to be present to be examined and cross-examined. They must be adopted by an expert so that they can become, in effect, the evidence of the expert. The present state of the internet reinforces the need for experts to vet articles. Today, any conceivable opinion on any side of a controversy can be dressed up and published on the internet without expert scrutiny such as is given to articles published in reputable national or professional

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journals, so judges need assistance to separate the wheat from the chaff. Director of Child Protection for P.E.I. v. J.P., April 25, 2013, P.E.I. S.C.

The proper procedure to be followed in examining an expert witness on other expert opinions found in papers or books is to ask the witness if she knows the work. If the answer is “no”, or if the witness denies the work’s authority, that is the end of the matter. Counsel cannot read from the work, since that would be to introduce it into evidence. If the answer is “yes”, and the witness acknowledges the work’s authority, then the witness has confirmed it and it becomes evidence. R. v. Marquard, [1993] 4 S.C.R. 223- par. 56.

Judicial Notice – a court may judicially take notice of facts that are either:

1. So notorious or generally accepted as not to be the subject of debate among reasonable persons or

2. Capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy. R. v. Find (2001) 154 CCC (3d) 97 (SCC). This is generally used as the test for adjudicative facts.

May be taken of facts so notorious as to be beyond reasonable dispute. A court is not entitled to rely on extra-legal data that is unsupported by sworn testimony and therefore lacks the safeguards provided by cross-examination. Re Jordan (1986), 57 Nfld. & P.E.I. R. 320.

A court should ask itself whether such fact would be accepted by reasonable people who have taken the trouble to inform themselves on the topic as not being the subject of reasonable dispute for the purpose for which it is to be used, keeping in mind that the need for reliability and trustworthiness increases directly with the centrality of the fact to the disposition of the controversy. See: R. v. Spence 2005 SCC 71 at par. 65. This is commonly accepted as the test for legislative or social framework facts.

If something is broadly known that is enough, even if it is not universally known. It is also acceptable if the fact or proposition is confirmed in commonly consulted sources that are trusted to be accurate. R. v. Cobham, [1994] 3 SCR 360.

Regardless of whether the facts are classified as adjudicative or social context, if they closely approach the central issue which the court has to determine, it is unlikely the court will take judicial notice of them. In this sense, the use of judicial notice operates on a sliding scale. The court did not take judicial notice of conditions in Angola, in articles prepared by the United Nations and Unicef in Children’s Aid Society of Toronto v. J.C., 2013 ONCJ 711 Canlii. 

Once a higher court takes judicial notice of a fact, precedent dictates that lower courts can and must take judicial notice.

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The court was not prepared to take judicial notice of articles about ADHD treatment and school scores in Children’s Aid Society of Toronto v. T.M, 2018 ONCJ 543. They went to the central issue for the court to determine. Nor could the court rely on other decisions that found medication was the best treatment for ADHD, as those findings were not specific to the child in front of it.

Judicial Notice – Residential schools

It is appropriate for courts to take judicial notice of matters such as the history of colonialism, displacement and residential schools in order to provide the necessary context for understanding and evaluating case-specific information presented by counsel: see R. v. Ipeellee, 2012 SCC 13, [2012] 1 S.C.R. 433, at para. 60, Children’s Aid Society of the Regional Municipality of Waterloo v. C.T., 2017 ONCA 931, at para. 54. See: Windsor-Essex Children’s Aid Society v. J.G.G., 2018 ONSC 4137.

Late filing of evidence –

When children are involved, if the evidence is relevant, necessary and probative to the matters in issue, the court should take an expansive and not a technical approach to its admission. See: Winton v. Lofranco, 2004 CanLII 7043 (ONSC). This principle certainly applies to child protection cases where courts are tasked with ensuring the safety, protection and best interests of children. See: Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 784.

Lay evidence - Opinion

Lay witnesses may present their relevant observations in the form of opinions where:

1) They are in a better position than the judge to form the opinion.

2) The conclusion is one that persons of ordinary experience are able

to make.

3) The witness has the experience to make the conclusion.

4) The opinions being expressed are merely a compendious mode of

stating facts that are too subtle or complicated to be narrated as

effectively without resort to conclusions.

5) The opinion is relevant and necessary.

Graat v. R. (1982) 31 C.R. (3d) 289 S.C.C.

Lay evidence is the kind of low-level opinion that any witness can offer, with or without qualifications. In family law, some element of opinion will always creep in when witnesses are describing the condition of persons, their emotional states or their interactions with children. The evidence must be based on first-hand knowledge as only experts can offer opinions based upon information from others.

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The rules of expert evidence do not apply where one describes factual observations that can be interpreted by lay persons. Mazara v. Clifton [2002] O.J. No. 4778 (SCJ).

Lay Evidence – Opinion of social worker

 From: Jewish Family and Child Service v. S.K., 2015 ONCJ 246:

Witnesses who are not experts but who nevertheless have experience may present their observations and conclusions in the form of an opinion. It is usual for social workers in child protection cases to give opinions, based on their education and clinical experience, about a variety of issues including the quality of parent and child interactions, the emotional state of people, appropriate placement and adoption issues.

The line between “fact” and “opinion” evidence is not always clear.  Generally lay witnesses may offer their relevant observations in the form of opinion evidence under the following circumstances:

1.        They are in a better position that the trier of fact to form the conclusions;2.        Their conclusion is one that persons of ordinary experience are able to make;3.        The witness, although not expert, has the experiential capacity to make the conclusions; and4.        The opinions being expressed are merely a compendious mode of stating facts that are too subtle or complicated to be narrated as effectively without resort to conclusions.

Leading Questions: Questions which suggest the answer, assume a fact in dispute, operate as an instruction to the witness, include a material fact leading to a conclusive answer or contains an improper suggestion or confirmation.

When it may be permissible: items not in dispute (non-controversial, inconsequential), to direct witness to a subject matter (transition from subject to subject), to refresh memory, in appropriate situations to abbreviate proceedings, to qualify experts, to deal with preliminary matters, to direct the witness to a time or place or occurrence, in complex matter, to help organize a comprehensive response, to assist in matters of extreme sensitivity or emotionality.

Letters (and personal calendars) as Exhibits - Not admissible. See: Robinson v. Kilby 1996 O.J. No. 423 (SCJ) and Lisanti v. Lisanti 1990 O.J. No. 3092 (SCJ), they must be in affidavit form.

In Bloom v Bloom, 2017 ONSC 1568, the Court found that Exhibit C, an unsigned letter from a counsellor, did not comply with Rule 14(19). As stated in Katz v. Katz 2014 ONCA 606(CanLII), at para. 63:

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Before making an order the efficacy of which will depend on the truth of the contents of a letter, a court should, at a minimum, require an affidavit from the author of the letter attesting to its contents.

Personal calendar introduced by parent to show parenting time not admitted as exhibit. Not a business record and not made contemporaneously. Prevost v. Prevost, 2017 ONSC 5825.

Onus of Proof

The onus of proof to determine a finding in need of protection and the disposition is on the society on a balance of probabilities. Children’s Aid society of the Niagara Region v. P.L.R. 2005 O.T.C. 255 (SCJ).

Past parenting evidence (section 93 of the CYFSA – formerly section 50 of the CFSA) –

The court must first determine if it is past parenting evidence. Then it must determine if the wider admissibility standards apply.

Past parenting is evidence of past child-rearing practices and conduct on the part of the same parent or parents in relation to a child in the care of one or both of them other than the child who is the subject-matter of the current proceeding in which the evidence is offered. How a parent treats the child before the court will always be relevant and likely admissible. Prof. Rollie Thompson, What’s Past Parenting is Prologue: Past Parenting Evidence in Ontario, Presented at OCJ Family Law Seminar, September, 2017.

Wider admissibility provisions in Section 93 are limited to parenting of child, other than child before the court. Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191 (CanLII); Halton Children’s Aid Society v. M.M., 2017 ONCJ 569.

However: See: D.D. v. Children’s Aid Society of Toronto, 2015 ONCA 903 which states:

36     Further, s. 50 of the CFSA expressly contemplates the admission of written reports of therapists and other persons involved in the child's care.

From: The Children’s Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757: Section 93 of the CYFSA may well enable the introduction of some hearsay that might otherwise not be admissible. The opening words of s. 93 (1) are words of limitation, often overlooked in the application of the provision. They state “despite anything in the Evidence Act”. They do not sweep aside all of the rules of evidence. This point was made more than 30 years ago by Nasmith J. in Catholic Children’s Aid Society of Metropolitan  Toronto v. P., [1984] O.J. No. 2262 (Prov. Ct. (Fam. Div.)), at para. 18:

The law of evidence has developed painstakingly over the years. There would be a degree of irony in suddenly invoking special children’s issues as an excuse for sweeping away these laws. Ironic, because surely sound decision-making based only on reliable evidence

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is at least as important in Court cases involving children as in any other instances of dispute resolution and it is at least equally important to the parties in these cases, including the children, that they have the right to prevent the admission of unreliable evidence that could prejudice the outcome.

Section 7 of the Charter of Rights applies to child protection cases. The use of section 93 of the CYFSA (formerly section 50 of the CFSA) must meet the twin tests of necessity and threshold reliability. In police reports, direct observations of police officers , but not the statements of others were admitted. Anonymous reports to afterhours worker was excluded, only direct observations were allowed. In trying to get in old notes as business records, the opinions, directions for future work and information from third party volunteers were not facts falling within business records. Risk assessments were not business records. The reason being that it was not an act, transaction, occurrence or event. Also Society summaries were not contemporaneous. CCAS of Toronto v. L. J., 2003 O.J. No. 1722(OCJ). This was followed in Children’s Aid Society of Halton Region v. J.O., 2013 ONCJ 191; CCAS of Toronto v. M.R.M., [2012] O.J. No. 3587 (OCJ).

To the contrary see: Halton Children’s Aid Society v. M.M., 2017 ONCJ 569, where the court writes:

…It appears to me that the very restrictive reading of CFSA s.50 adopted by Justices O’Connell and Jones, even in the face of parents’ Charter rights, would make the s. CFSA 50 provision meaningless. The principled exception to the hearsay rule set out in Khan and cited by Quinn J. would have allowed some hearsay into evidence regardless of its nature as hearsay, based on the twin tests of necessity and reliability.  That would make CFSA s.50 superfluous.  

But a narrow reading of CFSA s. 50 that would leave it devoid of purpose would violate a fundamental tool for statutory interpretation; the purposive analysis of legislative purpose. As Professor Ruth Sullivan wrote in Sullivan on the Construction of Statutes:

A purposive analysis of legislative purpose is based on the following propositions:(1)         All legislation is presumed to have a purpose. It is possible to discover or adequately reconstruct that purpose through interpretation.(2)         Legislative purpose must be taken into account in every case and at every stage of interpretation, including initial determination of a text’s meaning.(3)         In so far as the language of the text permits, interpretations that are consistent with or promote legislative purpose should be adopted, while interpretations that defeat of undermine legislative purpose should be avoided.

Viewed within the lens of the paramount purpose of the CFSA as a whole, the purpose of s. 50 is to broaden the common law hearsay rule when it comes to past parenting. That allows a courts making decisions regarding the best interests, protection and well being of children to have before them as broad a range of evidence relevant to a potential caregiver’s parenting as possible.

But while the starting point is the admissibility of past parenting conduct evidence under CFSA s. 50, that decision does not grant carte blanche to the court to admit any evidence, regardless of its reliability.  That would create the mischief to the fair trial rights of the parties that O’Connell J. sought to avoid.  Rather I see CFSA s. 50 as allowing the court broad discretion to admit evidence regarding past parenting conduct provided that it is prima facae reliable.

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Just because the evidence is about past parenting does not mean that it will be admitted. It must be relevant. The probative value must be tested against the possible prejudice. The reliability must be clear. Durham CAS v. R.B., 2005 O.J. No. 3794 (SCJ).

In Children’s Aid Society of Toronto v. L.L. [2010] O.J. No. 5725. (OCJ) the court accepted that the current parenting evidence outweighed damaging historical evidence of parenting. Court also found that the evidence must at least meet threshold reliability.

From: CAS Waterloo v. C.R., [1994] O.J. No. 2955 (OCJ).

- the past parenting evidence must not suffocate current parental conduct- factors of reliability are the completeness of the evidence, has it been tested,

the age of the information, the extent to which it is supported by direct observation of the parent

- are there any guarantees of the reliability- what limits can be put on it , such as limiting second or third hand hearsay- it must be fair and reliable.

It is clear that the admission of past parenting evidence does not necessarily mean that it will be accepted as persuasive by the trial judge or determinative of the result.  However, where a parent’s previous children have recently been made Crown wards, there is a tactical burden on the parent to show that he or she has taken sufficient remedial action to eliminate or at least reduce the need for protection that was found to exist in relation to the earlier children.  See. Children’s Aid Society of Niagara Region v. D.P. and S.B. (No. 3), [2003] O.J. No. 619,(Ont. Fam. Ct.); Catholic Children’s Aid Society of Toronto v. C.S., 2010 ONCJ 656 (CanLII).

The more recent the past parenting evidence, the more probative it is. Children’s Aid Society of Simcoe County v. B.D., [2014] O.J. No. 1641; Children’s Aid Society of Toronto v. S.C., [2017] O.J. No. 1762 (OCJ).

In a status review case it should be contained to a reliable backdrop against which to measure the extent to which the parents’ abilities and circumstances have changed. CAS Ottawa v. C.W., 2008 Canlii 13181 (Sup.Ct.). It should not contain a detailed review of all of the evidence previously taken into account. Society needs to be selective. Kawartha- Haliburton CAS v. D.C., [2002] O.J. 3864 (Sup.Ct.). In that case only the reasons for decision were permitted in – not the reports, exhibits and transcripts. Counsel was commended for only relying on previous judgment in Children’s Aid Society of Toronto v. S.C., 2016 ONCJ 234.

The objectives of the rule of res judicata, can be met by scrutinizing this evidence for relevance, reliability and probative value. Society not constrained to consents which might have limited facts due to desire to move case forward without contention. Durham CAS v. B.(R.), [2005] WDFL 4448 (SCJ-Rogers J.).

Entirely apart from section 93, prior court orders, reasons for decision and statements of agreed facts are admissible in subsequent court proceedings. A court can take judicial

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notice of other court orders, even in other files. Attorney General of B.C. v. Malik, 2011 1 S.C.R. 657; Children’s Aid Society of Toronto v. I.H., 2017 ONCJ 760. Statements of Agreed Facts are admissions – an exception to the hearsay rule.

Prior parenting capacity assessments were admitted in Highland Shores CAS v. D.S., 2015 ONCJ 793 and in Chatham-Kent Children’s Services v. J.D., 2015 ONCJ 210.

In Halton CAS v. M.M., [2017] ONCJ 569, the court used section 93 to admit the sentencing judge’s reasons for decision, her comments about the agreed statement of facts placed before her, the mother’s cross-examination about that agreed statement of facts and statements made by the adolescent child to the author of a Gladue report.

The court noted the importance of the phrase, “may admit” in Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14. A party wished to admit the transcript of a child on the preliminary hearing. However, with a criminal publication ban in existence, the court felt it would be unfair to use it. The court reviewed the transcript and found it had marginal relevance.

In CAS of London and Middlesex v. R.H. [1999] O.J. No. 5037 (SCJ). Also in Catholic Children's Aid Society of Hamilton v. C.R., 2009 CanLII 34047 (ON S.C.D.C.), where the court admitted parenting capacity reports with respect to prior children and stated that: “Neither the fact that the reports were originally created for use in an earlier court proceeding concerning the appellants and another child nor the fact that the authors of the reports have not sworn an affidavit for use on this proceeding is a bar to admissibility. The legislature has expressly created a special evidentiary rule applying to a proceeding under this part of the CFSA to permit the admission of such documents.”

Also wider admissibility standard in D.D. v. Children’s Aid Society of Toronto [2015] ONCA 903, where the court writes:

37   Evidence about a child's expressed views is often presented through persons to whom the child has communicated. Section 39(5) of the CFSA provides that a child under 12 is not entitled to attend court unless the court is satisfied the child can understand the proceedings and will not suffer emotional harm.

38     Statements about the child's views and preferences set out in affidavits by Children's Aid Society workers' affidavits are admissible: Strobridge v. Strobridge (1992), 10 O.R. (3d) 540 (ONSC).

But tighter admissibility standard set out in CAS of Niagara Region v. D.M., [2002] O.J. No. 1421 (SCJ) where court says:

I am not convinced that the admissibility of expert evidence should vary in accordance with the subject-matter or importance of the case. I think that a court must always be vigilant when it comes to admitting opinion evidence and should consistently eschew the what-harm-will-it-do-to-let-it-in approach. I favour a rigorous screening of the proffered expert in every instance. However, if I am wrong, and the nature of the case does dictate the stringency with which the admissibility of expert evidence is viewed, I can think of no

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case deserving of more careful attention than where Crown wardship and termination of parental and sibling access are the issues.

Similar sentiments go back to 1986, where Justice Steinberg wrote in Catholic CAS of Hamilton-Wentworth v. J.C.S. [1986] O.J. 1866 UFC:

Evidence should not be relaxed in child protection cases. This issue is of such importance that any laxity or latitude in the admission of expert evidence ought not to be accepted.

Children’s Aid Society of Halton Region v. A.(K.) 2008 ONCJ 273 (Canlii)also states:[27]    These principles (vigilance about ordering assessments) are equally applicable and relevant in child protection matters.  In my view, it is even more important for the court to carefully assess the necessity for such intrusions in child protection cases where the ultimate result may be a total severance of the ties between children and their parents.

More recently, The Children’s Aid Society of Ottawa v J.B. and H.H., 2016 ONSC 2757 sets out the importance of strong evidentiary standards for necessity and threshold reliability stating:

Section 50 (1) of the CFSA and Section 35 of the Evidence Act may well enable the introduction of some hearsay that might otherwise not be admissible. The opening words of s. 50(1) are words of limitation, often overlooked in the application of the provision. They state “despite anything in the Evidence Act”. They do not sweep aside all of the rules of evidence. This point was made more than 30 years ago by Nasmith J. in Catholic Children’s Aid Society of Metropolitan  Toronto v. P., [1984] O.J. No. 2262 (Prov. Ct. (Fam. Div.)), at para. 18:

The law of evidence has developed painstakingly over the years. There would be a degree of irony in suddenly invoking special children’s issues as an excuse for sweeping away these laws. Ironic, because surely sound decision-making based only on reliable evidence is at least as important in Court cases involving children as in any other instances of dispute resolution and it is at least equally important to the parties in these cases, including the children, that they have the right to prevent the admission of unreliable evidence that could prejudice the outcome.

Past Recollection Recorded – Where no independent memory, even with an aid. The aid can go in if sufficient guarantees of trustworthiness. The aid goes into evidence as the witness cannot really be cross-examined on it. It replaces the witness. Conditions of admissibility

a) Must be admissible if had gone in viva voceb) Must be reliable. c) Timeliness- it must have been recorded when the memory of the witness was

vivid and likely accurated) Absence of memory – a total loss of memory is not necessary. Imperfect present

recollection of the critical elements of the events is sufficient.e) Present Voucher of accuracy – must testify that was truthful at the time it was

recordedR. v. Richardson 2003 O.J. No. 3215 Ont. CA

Pleadings (amendments): The court has discretion to make a finding that a child is in need of protection pursuant to a clause of the Act not pleaded, if justified by the evidence and if the parent had prior disclosure of the relevant evidence, is not caught by surprise

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and has had a full opportunity to test this evidence. Durham Children’s Aid Society v. R.S. and J.M. [2005] O.J. No. 570 (SCJ) and Children’s Aid Society of Hamilton-Wentworth v. K.R. [2001] O.J. No. 5754 (SCJ-Family Court), where Justice Czutrin stated:

"While it is better practice, and the sections are set out in the forms to plead the subsections relied on, the court cannot be prohibited from finding a child in need of protection if the appropriate box has not been checked off, especially where the facts support such a conclusion. Events in a child's life are ever evolving and not frozen to events that existed at the beginning of the court process. It is open for me to find a child in need of protection where the evidence supports the facts that fall under any subsection of s.37 where the evidence and facts have been established, and as in this case, cannot come as a surprise."

Predictions of future behaviour - It is impossible for parents to overcome many years of destructive ways with an 11th hour reformation no matter how sincere their intentions. The best predictor of future behaviour is past behaviour. Children are not to be used as therapeutic tools by their parents. The needs or desires of access parents are secondary to the best interests of the children. Worthington v. Worthington, [2000] O.J. No. 4853 (SCJ); Children’s Aid Society of Hamilton v. A.W. and B.J., 2013 ONSC 7849 (CanLII).

Privilege-

a) Litigation privilege – There will be an oral or written communication between lawyer/client or a third party made exclusively or for the dominant purpose of the client’s contemplated or pending litigation. General Accident Assurance Company v. Chrusz (1999) 45 OR (3d) 321 CA. Covers consultants, investigators or experts hired to provide information, advice or evidence. However, with an expert, not privileged unless it could be established that the expert was acting as a surrogate for the client in obtaining legal advice. If calling an expert, their file is fair game, privilege is waived. The opposing side must be able to attack the foundations. R. v. Stone [1999] 2 SCR 290.

From: D.J. v. S.F., 2017 ONCJ 879

The work product of the private investigators, which would include any written reports, photographs, and surveillance videos, was protected by litigation privilege and should not be disclosed as the mother was not intending to call the private investigators as witnesses or to rely upon this evidence. This did not preclude the mother, in cross-examination, from answering any relevant or proper question regarding whether she employed a private investigator to follow the father, the reasons that she employed the private investigator, and the time periods in question. See: Chatham-Kent Children’s Services v. R.T. [2014] O.J. No. 542, 40 R.F.L. 467 (S.C.J.); Walker v. Woodstock, [2011] O.J. No. 157 (Div. Court).

b) Common interest privilege – When a litigant shares privileged information with another person who has a common interest in the outcome of the litigation. Not restricted to a co-litigant. Buttes Gas and Oil v. Hammer (no. 3) [1981] Q.B. 223 CA. Where a third party acts as a messenger for instructions for the lawyer from

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the client, this is privileged. See General Accident above. Exception to rule that disclosure of information to a third person is a waiver of the privilege.

c) Case by Case privilege (common law)– If 4 criteria in Wigmore are met1. Communication must originate in a confidence that it will not be

disclosed.2. The element of confidentiality must be essential to the full and

satisfactory maintenance of the relationship between the parties.3. the relationship must be one which should be fostered in the public

good.If all these requirements are met, the court must consider whether the interests served by protecting the communication from disclosure outweigh the interest at getting at the truth and disposing correctly of the litigation.

Psychological Tests:

1. Wechler Adult Intelligence Scale – evaluates intellectual ability.2. Wide Range Achievement Test – evaluates level of academic achievement.3. Paulhus Deception Scales – self report questionnaire designed to measure the

tendency to give socially acceptable or desirable responses.4. Minnesota Multiphasic Inventory – self report measure of personality designed to

offer opinion on mental health.5. Adult Adolescent Parenting Inventory – provides an index of risk for abusive and

neglecting parenting attitudes and practices. 6. Child Abuse Potential Inventory – self-report screening instrument to detect child

abusers.

Reasons: -Need to clearly articulate which section the finding is under and the reasons, otherwise status review needs to reconstruct gaps. CAS v. R.G., above.

Reasons for Decision: - Court was not prepared to rely on reasons for decision given on a temporary care hearing as different evidentiary standards applied on that hearing. See: Children’s Aid Society of the Region of Peel v. P.D., 2019 ONCJ 373.

Res Judicata - Child Protection – It is applicable in child protection cases. CCAS v. M. (SCC). It can apply to consent judgments Re Ontario Sugar Co. 1911 44 SCR 65.

Social Science Research – Not appealable error when judge referred to articles, since he did not use them to make findings of fact or decide the issues before him. Best practice, would have been to identify the articles and give the parties the opportunity to review them and make submissions. CAS v. V. L. [2010] O.J. No. 26 (SCJ) – also see internet evidence.

Temporary Care and Custody – Form of Evidence Justice Katarynych in CAS Toronto v. M.A. 2002 O.J. No. 1432 sets out that cases must be dealt with justly:

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1) Rule 2(2) requires that dealing with a case justly includes ensuring that the procedure is fair to all parties.

2) It is admissible evidence in writing that can be filed, not just any evidence. 3) Rule 14 (18) requires that the affidavit should contain as much personal

knowledge as possible. If from a third party, the source must be identified. 4) Past parenting evidence must be relevant. Issues of relevance, probative value

and admissibility are still alive. 5) The affidavit material should set out at the beginning of the affidavit, the reasons

for the intervention, why less disruptive steps were not taken, and what has been learned in the investigation to date. The parent’s entire life should not be on parade.

6) There should be a respect for the rules of evidence. Supposition, conjecture, speculation, innuendo, gossip, unqualified opinion, where qualified opinion is required have no place in an affidavit.

7) Exhibits shouldn’t be used as a substitute for proper evidence.8) The affidavits should be proportionate. Factual inferences can be drawn from the

evidence only if the facts alleged to support the inference are established by the evidence.

The relaxed evidentiary standard in subsection 94 (10) of the CYFSA (formerly subsection 51 (7) of the CFSA) should be more rigorously applied the longer the case is before the court. Children’s Aid Society of Algoma v. H.P., 2011 ONCJ 679.

From: Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661:

[19]      Child protection cases must be brought before the court within 5 days of a child’s apprehension. It is often necessary for society workers to advise the court about information they have learned from third parties, such as the police, doctors, teachers and community members at this stage, as there is inadequate time to obtain direct affidavits from these persons. A relaxed evidentiary standard is required at this preliminary stage to ensure that children are protected while the investigation continues. However, the longer the case goes on, the more important it becomes for the society to produce direct evidence from these third parties.

 [20]      Direct evidence from witnesses is likely to be more reliable, as it is not being interpreted by a third person. Witnesses are also likely to be much more careful about, and accurate with their evidence if they know it will be in a court affidavit and they may be cross-examined about it. When courts are dealing with the protection of children and the intrusion of the state into a family’s life, it is imperative that they be able to make decisions based on the most reliable evidence that can be presented.

25]      The Lang report reiterates the message set out in the “Inquiry into Paediatric Forensic Pathology in Ontario” (Toronto: Queen’s Printer for Ontario, 2008) (the Goudge report) that judges have a vital role to play in protecting the legal system from the dangers of unreliable expert evidence. Both reports urge judges to act as gatekeepers by taking a more rigorous approach to examining the reliability of expert evidence. [26]      It follows that judges should be vigilant gatekeepers at all stages of a protection case – not just at the trial stage. A preliminary finding of drug or alcohol abuse against a parent at this stage is likely to follow that parent throughout the entire protection case. It has the potential to significantly impact the direction of the case. It is critical that any such finding be based on reliable evidence.

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 [27]      The evidence of the urine analysis of the father, as presented by the society, does not meet the threshold of being credible and trustworthy evidencefor the following reasons: a)      The society did not provide direct evidence from the clinical director. b)      The requirements when a witness attests to evidence learned from someone else, set out in subrule 14 (19) of the Family Law Rules,were not complied with by the Family Service Worker. c)      No evidence was led about whether the clinical director is an expert in this area. d)      A curriculum vitae from the clinical director was not produced.

 e)       No evidence was led about the reliability of urine tests.

 f)        There was inadequate explanation about possible limitations of urine testing and analysis.

 g)      There was no discussion about possible alternative explanations for the test result. [28]      Before admitting the urine test result and its analysis, the court, in exercising its gatekeeper role, needs to hear evidence about whether urine testing is reliable evidence about what it purports to prove. It will also require evidence that the testing done in this case complied with the generally accepted professional standards and quality assurance processes in this field.

On s motion for interim custody, information from a “confidential informant” inthe society’s affidavit regarding the parent is a violation of Rule 14(19) of the Family Law Rules. Further, it is not information that is “credible and trustworthy” under subsection 94 (10) of the CYFSA and cannot be relied upon. Children’s Aid Society of Halton Region v. Beth M. and Thomas K., 2011 ONCJ 660, 210 A.C.W.S. (3d) 139, [2011] O.J. No. 5576, 2011 CarswellOnt 13908 (Ont. C.J.), per Justice Roselyn Zisman.

Hearsay evidence from several professionals with an obligation to keep accurate records that was consistent on material facts was deemed to be credible and trustworthy and given more weight – particularly when their evidence was recorded by a society worker with an obligation to keep accurate contemporaneous notes. This mitigated the inherent risks of hearsay evidence. Jewish Family and Child Services of Toronto v. A.K., 2014 ONCJ 227. 

Court gave wide latitude in allowing hearsay evidence about children’s views and preferences, finding it most reliable evidence. Children’s Aid Society of Toronto v. M.S., 2018 ONCJ 14.

The society must have a reasonably grounded belief about the risk of harm – it must be more than mere speculation. Catholic Children’s Aid Society of Toronto v. M.(C.) 2003 Canlii 54589 (SCJ).

Transcripts of case conference – Comments made by parties or their lawyers at case conferences are generally not admissible at trial as frank discussion of merits of claims is encouraged. However, undertakings given, decisions made and directions given are

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admissible. Jewish Family and Child Service of Greater Toronto v. I.P. and I.M., 2016 ONCJ 202.

A court order is still required if a party or counsel in a related child protection case is seeking a transcript. Halton Children’s Aid Society v. J.T., 2019 ONCJ 39.

In Children’s Aid Society of Niagara Region v. N. (R.) 2004 CarswellOnt 1638 (Ont. S.C.J.), a party was denied the right to obtain transcripts from conferences for the purpose of a lawsuit against the society. The court set out a two-part test:

(1) Is there a legitimate need for them?

2) Does their probative value outweigh their possible harm?

Video and Audiotapes

From: CCAS of Toronto v. L.D., 2018 ONCJ 68

[141] At ¶42-50 of Webster v. Suteu, 2015 ONCJ 538 (CanLII), Justice Zisman considered the admissibility of photographs and a video. She referred to Rodger v. Strop, 1992 CarswellOnt 386 (Gen. Div.), in which the Court held that for photographs to be admitted into evidence, they must accurately depict facts, there must be an absence of an intention to mislead and they have to be verified by the photographer. While Rodger v. Strop concerns photographs only, Zisman J. held that the same test applies respecting video recordings.

[142] I agree with the mother that the videos and the audio recording are not authenticated according to this test. The father filed insufficient evidence to explain how the recordings were made, to explain the context surrounding the recordings, or to persuade the Court as to their accuracy. I do not have evidence that the recordings depict the entire sequence of events, or by contrast to explain whether they are only a snippet of a larger conversation or occurrence, in which case, there would been to be some explanation as to why the father opted to include only a snippet.

Court followed Hameed v. Hameed, [2006] O.J. No. 3109 (OCJ) and also excluded videotaping of child for public policy reasons. See: Evidence annotations for discussion of public policy considerations.

Voir Dire–

On the voir dire, it is for the trial judge to determine whether the conditions precedent to the admissibility of proposed evidence have been met. It is a separate proceeding from the trial proper and the evidence taken on the voir dire forms no part of the evidence at trial unless the parties expressly agree to its incorporation. R. v. Erven, 1978 Canlii 19 (SCC).

Each admissibility issue warrants a separate inquiry or voir dire. Evidence adduced on one voir dire does not, without more, become evidence on another voir dire held to determine a different admissibility issue. The manner in which a voir dire is to be conducted is left to the discretion of the presiding judge, and is not subject to rigid or pre-fabricated rules. Relevant factors include, but are not limited to, the nature of the issue

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under consideration and of the case itself, as well as the means of proof available. R. v. Sadikov, 2014 ONCA 72 (Canlii).

Not every question of admissibility requires a voir dire. It will not be required when there are no preliminary facts to prove (issues of relevance for example) or when there is no dispute about the preliminary facts. A voir dire will be required when there are preliminary facts in dispute, which are the foundation for the admissibility ruling. For instance, to admit a business record, the proponent has to prove the statutory or common law requirements.

Apart from the rules of privilege, the rules of evidence are relaxed in a voir vire.

Nothing heard in the voir dire is admissible at trial unless the parties agree otherwise. Family and Children’s Services of St. Thomas and Elgin v. A.C., [2013] O.J. No. 3837 ONCJ. The parties can agree that parts of the voir dire are admissible at trial. If there is no agreement the court has the trial management power to make an order to that effect. R. v. Adam, [2006] B.C.J. No. 2167.

In Catholic Children’s Aid Society of Toronto v. R.M., 2017 ONCJ 661, the court set up a voir dire on a temporary care hearing about whether urine analysis evidence was credible and trustworthy. It posed the following questions to be answered:

a) Whether the clinical director is qualified as an expert in this field. The process and criteria to determine his expertise set out in White Burgess Langille Inman v. Abbott and Haliburton Co., 2015 SCC 23 (CanLII), should be followed.

b) What laboratory actually conducted the urine testing and measured or interpreted the results.

c) Whether that laboratory is a forensic or clinical laboratory.

d) What the qualifications are of the persons conducting the testing and measuring or interpreting of the test results.

e) Whether urine testing is generally accepted as reliable evidence of drug and alcohol use.

f) Whether there are additional tests or markers that are used to verify the reliability or integrity of a sample in a forensic setting.

g) Whether there are meaningful peer review, professional standards and quality assurance processes for urine testing. In particular, are there generally accepted standards about chain of custody of a sample and the time frames for each step in the process to be completed? Are subjects providing a sample fully monitored?

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h) Whether there is a serious dispute or uncertainty about the science and, if so, what they are.

i) What the limitations are in the testing or situations where they may be considered less reliable.

j) What is the generally accepted error rate of such testing?

k) Whether the professional standards and quality assurance processes were followed in this case to protect the reliability and integrity of the sample.

l) The step by step process followed in this case in conducting and interpreting the testing and ensuring its accuracy should be described.

m) A full explanation of what the test scores mean and a discussion of other possible interpretations of the test results should be provided.

n) To what extent can the results be reliably interpreted to determine if they reflected recreational use of substances or more significant impairment?